Last week, the German Constitutional Court issued a much-anticipated decision,
striking down its data retention law as violating human rights. It was an
important victory for Europe’s Freedom Not Fear movement, which was formed to
oppose the EU Data Retention Directive. But it was also a reminder of the
political work which remains to be done to defeat it.
When the European Union first passed the Data Retention Directive in 2006,
despite a hard-fought
campaign by European activists, it seemed like the beginning of the end for
Internet privacy. The directive sought to require telecommunications service
providers operating in Europe to retain a detailed history of each of their
customers' activity for up to 2 years for possible use by law enforcement;
including phone calls made and emails sent and received.
The response from European citizens was swift and outraged. Under the banner
of Freedom Not Fear, mass protests
were held in cities all across Europe and beyond. The charge was led by the German Working Group on Data
Retention (AK Vorrat), which in 2007 filed a class-action
lawsuit of nearly 35,000 people challenging the German law.
The suit's complaints were mostly upheld by last week's German Constitutional
Court decision. The court held that the blanket data retention mandated by the
EU directive violated Article 10 of the German Constitution, which guarantees
the basic right to
private life and correspondence. The Court said that an infrastructure of
exploratory surveillance results in an exceptional intensity of interference
with human rights, which must be proportionately protected with appropriate
safeguards. It also significantly narrowed the options for similar EU retention
laws on other types of data. The court ordered the immediate deletion of all the
data stored since the law went into effect in 2008 and ordered the suspension of
data collection until a revised national law is proposed.
However, the court did choose to leave many important questions about the EU
directive unanswered. In highlighting the need for increased safeguards, the
court failed to recognize that the storage of data
itself is what violates human
rights. For instance, a survey
of German citizens in 2008 found that 1 in 2 people would not have
conversations with counselors or therapists by phone or email because of their
concern about data retention.
A bolder stance was taken in October 2009 by the Romanian Constitutional
Court, which ruled
that the EU directive fundamentally violated Article 8 of the European
Convention on Human Rights, which guarantees the right to respect for private
life and correspondence. Data retention itself, the court wrote, is "likely
to overturn the presumption of innocence and to transform a priori all
users of electronic communication services or public communication networks into
people suspected of committing terrorism crimes or other serious crimes." As a
result, all citizens would become "permanent subjects to this intrusion into
their exercise of their private rights to correspondence and freedom of
expression."
The rulings in Romania and now Germany set the stage for an imminent series
of decisions on the status of national
data retention laws across Europe. The recent Bulgarian vote on data
retention legislation met with sharp
criticism and protests. Petitions against the Belgian data retention law are
available in both French and Flemish. The constitutional challenge
against the Retention
of Data Bill brought by Digital
Rights Ireland may be referred to the European Court of Human Rights. In the
meantime, despite the fact that the European Commission won its lawsuit
against the government of Sweden for failing to implement the directive, the
minimal penalty turns out to be worth the political risk.
In order to overturn a directive, the European Commission, Parliament, and
Council have to agree. Viviane Reding, the incoming European Commissioner for
Justice, Fundamental Rights, and Citizenship, declared at her confirmation
hearings her
dedication to defending the right to privacy. The members of the European
Parliament, inaugurating their new term, flexed their political muscle when they
recently rejected
assenting to the SWIFT agreement that would have enabled the wholesale
transfer of Europeans' financial data to the US. The European Council,
representing the ministries of the individual Member States, will respond to the
political climate in their home countries.
All in all, the threats to privacy and free speech posed by the Data
Retention Directive are on their way to being nullified. In Germany, AK Vorrat
launched
its campaign against the new law being devised and set its sights on ending
data retention on the European level. They will need the help of citizens across
Europe to raise awareness and speak out for their rights on national levels.
Freedom Not Fear is planning another series of protests later this year –
stay tuned to Deeplinks or sign up for FNF's mailing list to
find out what is being planned near you.
Electronic Frontier Foundation