The EC Data Retention Directive: Legal Implications for Privacy and Data Protection

The EC Data Retention Directive: Legal Implications for Privacy and Data Protection

Nóra Ní Loideain (Office of the Director of Public Prosecutions, Ireland)
DOI: 10.4018/978-1-60960-083-9.ch015
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Abstract

The focus of this paper is the new European legislation designed to harmonize domestic laws on the retention of telecommunications data for the purpose of assisting law enforcement efforts. The European Union introduced the EC Data Retention Directive in 2006. This Directive requires the retention of every European citizen’s communications data for up to two years for the purpose of police investigation. There is, however, a major problem with the Directive in that it regularizes, and thereby entrenches, the practice of data retention across Europe. No systematic empirical evidence supports the introduction of such broad surveillance. The existence of data retention in principle raises concerns for data protection and the right to respect of privacy as protected under the European Convention of Human Rights (ECHR). This paper questions the proportionality of the Directive in line with data protection principles and Europe’s obligations under Article 8 of the ECHR.
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Ii. Background Of The Data Retention Directive

The blanket retention of communications data for the purpose of law enforcement was a measure first proposed by the EU Telecommunications Council shortly before the 9/11 terrorist attacks upon New York and Washington D.C. in 2001. Under this early proposal, Internet Service Providers (ISPs) would be required to retain all citizens’ communications data from telephones, mobile phones, faxes, emails and other internet use for up to 7 years (Lillington, 2001a). After the 9/11 attacks, the President of the United States of America sent a communiqué urging the EU to adopt provisions for the blanket retention of communications data “in the international effort against terrorism” (United States Mission to the European Union, 2001). More than thirty international civil rights organizations expressed concern to the EU Council of Ministers and U.S. President George Bush regarding the threat to civil liberties and the right to privacy posed by this unprecedented measure (Global Liberty Internet Campaign, 2001). These civil liberties organizations also highlighted the absence of such a data retention obligation for ISPs in the U.S. and pointed out that “there is a significant risk, if this proposal goes forward, that US law enforcement agencies will seek data held in Europe that it could not obtain at home, either because it was not retained or because US law would not permit law enforcement access.” The opposition of the Article 29 Working Party, Data Protection Commissioners across the European Union, was more direct:

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