April 8, 2014 | By Danny O'Brien

Data Retention Directive Invalid, says EU's Highest Court

Today the European Court of Justice declared the EU's Data Retention Directive invalid, declaring that the mass collection of Internet data in Europe entailed a "wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data." The Directive ordered European states to pass laws that obliged Internet intermediaries to log records on their users' activity, keep them for up to two years, and provide access to the police and security services. The ECJ joins the United Nations' Human Rights Committee which last month called upon the United States to refrain from imposing mandatory retention of data by third parties.

The decision is a victory for the human rights activists that have fought hard to have the original Europe-wide law—rushed through the European Parliament in 200—re-considered. Digital Rights Ireland, who first launched a lawsuit against the Irish Government against their implementation of the Directive, and AK Vorrat Austria, who organized to reject data retention in Austria, both pursued the issue for many years in the face of concerted opposition from their own governments and officials.

While the decision comprehensively rejects the current directive, some states may put up a fight to keep their laws, while others could take this opportunity to become champions of their citizens' privacy. The Finnish Minister of Communications, Krista Kiuru, has already declared a full review of Finnish law in the light of the decision, saying that "if [Finland] wants to be a model country in privacy issues, Finnish legislation has to respect fundamental rights and the rule of law." The German and Romanian data retention laws have already been declared unlawful by their national constitutional courts. Governments advocating retention, like the UK, may argue that they can still maintain their existing data retention laws, or there may even be an attempt to introduce a whole new data retention directive that would attempt to comply with the ECJ's decision.

However the data retention regime unwinds in Europe, this decision sends an important signal to other countries in the world who are considered the same path as the EU. Brazil's online activists have been fighting hard to keep data retention out of their flagship Internet Bill of Rights, the Marco Civil. The law, which is about to be considered by the Brazilian Senate, would require ISPs to record personal data for one year, and other service providers log keep private information on their users for six months. New laws requiring mandatory data retention by companies in the United States have also been championed by the Obama administration's Department of Justice, and have been proposed by the Whitehouse as a "solution" to the NSA spying scandal. As the ECJ's decision shows, the indiscriminate recording and storage of every aspect of innocent civilians' online lives is a travesty of human rights, no matter where that collected data is housed.


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