Presented at CPDP 2014. Longer, updated version (with Court of Justice judgment) presented at FTC 22 Apr 2014

1. Data Retention Directive:
recent developments
Dr Ian Brown
University of Oxford

2. Main provisions
 §1(1): This Directive aims to harmonise Member States' provisions
concerning the obligations of the providers of publicly available
electronic communications services or of public communications
networks with respect to the retention of certain data which are
generated or processed by them, in order to ensure that the data are
available for the purpose of the investigation, detection and
prosecution of serious crime…
 §3(1): … to the extent that those data are generated…in the process of
supplying the communications services concerned.
 §4: … The procedures to be followed and the conditions to be fulfilled in
order to gain access to retained data in accordance with necessity and
proportionality requirements shall be defined by each Member State in its
national law, subject to the relevant provisions of European Union law or
public international law…
 §6: … the categories of data specified in Article 5 are retained for periods
of not less than six months and not more than two years from the date of
the communication.

3. Article 5: Data to be retained

4. Proportionality of retaining data
 “The decision to retain communication
data for the purpose of combating serious
crime is an unprecedented one with a
historical dimension. It encroaches into
the daily life of every citizen and may
endanger the fundamental values and
freedoms all European citizens enjoy and
cherish.” –Article 29 WP Opinion 3/2006

5. Article 10: Statistics
 1. Member States shall ensure that the Commission is
provided on a yearly basis with statistics on the retention of
data generated or processed in connection with the provision
of publicly available electronic communications services or a
public communications network. Such statistics shall include:
 the cases in which information was provided to the competent
authorities in accordance with applicable national law,
 the time elapsed between the date on which the data were
retained and the date on which the competent authority
requested the transmission of the data,
 the cases where requests for data could not be met.
 2. Such statistics shall not contain personal data.

6. Comms data requests/m people
Data: European Commission review of Data Retention Directive; IMF World Economic Outlook

7. Article 10 “confusion”
 “There are different interpretations of the term 'cases'. This term could mean
 (i) each and every item of data that was or was not provided
 (ii) each request which may be for one set or multiple sets of data
 (iii) each investigation in which there might be multiple requests for multiple items of data.
 “Where the request is addressed to a service provider is for more than one item of
data, the data may be of different ages. Recording the age of individual data records
could be unduly onerous for operators and/or competent authorities.
 “Statistics submitted from some Member States only refer to requests for traffic and
location data and not to subscriber information acquired from operators.
 “The phrase 'Cases where requests for data could not be met' has been interpreted
in various ways to mean
 i) cases where the service provider was unable to provide data that should have been
retained under the DRD but were not retained;
 ii) data that were needed but which do not fall within the scope of the DRD, or iii) data that
had been retained but were no longer available because the request was made after the
expiry of the retention period.”
Evidence for necessity of data retention in the EU, 2013, p.2

8. National court decisions
 Bulgarian Supreme Administrative Court blocked remote Ministry of
Interior access to data and security service access without a court
order (11 Dec 2008)
 “the obligation to retain the data … as an exception or a derogation
from the principle of personal data protection … empties, through
its nature, length and application domain, the content of this
principle” –Romanian Constitutional Court, 8 Oct 2009
 “Given the rapid advance of current technology it is of great
importance to define the legitimate legal limits of modern
surveillance techniques used by governments… without sufficient
legal safeguards the potential for abuse and unwarranted invasion
of privacy is obvious” –Irish High Court, 5 May 2010

9. DG HOME DRD reform plans
 reduced and harmonised retention period
 “Approx. 67% of data is requested within three
months and 89% within six months” (Evidence for
necessity of data retention in the EU, 2013, p.7)
 clear scope of types of data to be retained
 minimum standards for access and use of data
 stronger data protection
 consistent approach to reimbursing operators'
costs

10. Advocate General’s Opinion
 Opinion of Advocate General Cruz Villalon,
12/12/13, Cases C-293/12 and C-594/12:
 §70: “Directive 2006/24 constitutes a particularly
serious interference with the right to privacy”
 §72: “The collection of such data establishes the
conditions for surveillance which, although carried out
only retrospectively when the data are used, none the
less constitutes a permanent threat throughout the data
retention period to the right of citizens”
 §149: “no argument was able to convince me of the
need to extend data retention beyond one year”

11. Court of Justice’s judgment
 “Those data, taken as a whole, may allow very precise conclusions to be drawn
concerning the private lives of the persons whose data has been retained, such as the
habits of everyday life, permanent or temporary places of residence, daily or other
movements, the activities carried out, the social relationships of those persons and
the social environments frequented by them.”
 Retention “constitutes in itself an interference with the rights guaranteed by Article 7 of
the Charter… the access of the competent national authorities to the data constitutes a
further interference with that fundamental right”
 “the fact that data are retained and subsequently used without the subscriber or
registered user being informed is likely to generate in the minds of the persons
concerned the feeling that their private lives are the subject of constant surveillance.”
 Directive does not “adversely affect the essence of those rights”, but “the fight
against serious crime…does not, in itself, justify a retention measure”
 Broad scope “entails an interference with the fundamental rights of practically the
entire European population… it is not restricted to a retention in relation (i) to data
pertaining to a particular time period and/or a particular geographical zone and/or to a
circle of particular persons likely to be involved, in one way or another, in a serious crime,
or (ii) to persons who could, for other reasons, contribute, by the retention of their data,
to the prevention, detection or prosecution of serious offences.”

12. Court of Justice’s judgment
 “the access by the competent national authorities to the data
retained is not made dependent on a prior review carried out by
a court or by an independent administrative body whose decision
seeks to limit access to the data”
 “does not require the data in question to be retained within the
European Union, with the result that it cannot be held that the
control, explicitly required by Article 8(3) of the Charter, by an
independent authority of compliance with the requirements of
protection and security, as referred to in the two previous
paragraphs, is fully ensured.”
 “Having regard to all the foregoing considerations, it must be held
that, by adopting Directive 2006/24, the EU legislature has
exceeded the limits imposed by
compliance with the principle of proportionality in the light of
Articles 7, 8 and 52(1) of the Charter.”