Road Blocks to Data Retention: Invalidating the Snoopers’ Charter by Dr. Binoy Kampmark

Deemed by the Home Office an exemplar of legislation balancing security and freedoms, the UK Data Retention and Investigatory Powers Act (DRIPA), otherwise known as the Snoopers’ Charter, did not impress the EU Court of Justice.  The case had been brought in 2014 by two MPs, David Davis and Tom Watson.  Davis had since evacuated from the brief, leaving Watson to savour the proceedings.

snoop01_400The issue pivoted on a few crucial notions behind the requirement that communications service providers retain “traffic data” (fixed and mobile call logs) and mobile phone location data up to 12 months. These were the necessity of such an undertaking and its ultimate object. Retaining data which might become a delicious point of entry for law enforcement authorities has been a thorny subject in the context of EU laws.

Importantly, the views of governing authorities have diverged from those on the Court bench. The European Commission has been rather sympathetic to the whole idea of data retention.

In 2014, the Commission outlined its views on the subject:

Data retention enables the construction of trails of evidence leading up to an offence. It also helps to discern or corroborate other forms of evidence on the activities of and links between suspects and victims. In the absence of forensic or eyewitness evidence, data retention is often the only way to start a criminal investigation. Generally, data retention appears to play a central role in criminal investigation even if it is not always possible to isolate and quantify the impact of a particular form of evidence in a given case.

That same year, the court struck down the European Union’s own Data Retention Directive of 2006 in Digital Rights Ireland, deeming it incompatible with the fundamental rights of the European Charter.[1] Since then, an assortment of European states have tried to evade the implications of that ruling.

Read the whole article in Ovi Magazine, HERE!


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