Sự trở lại của việc lưu giữ dữ liệu? Cựu thẩm phán EU bác bỏ kế hoạch của Ủy ban

On 8 April 2014 the European Court of Justice annulled the EU Data
Retention Directive which required the bulk collection of any citizens
call detail records and location. 8 years later EU Com-mission and EU
governments are scheming how to maintain or restore bulk collection
pro-grammes - writes Dr. Patrick Breyer MEP

In a legal opinion published today former EU Judge Prof.
Dr. iur. Vilenas Vadapalas finds that two of the most commonly used data
retention schemes are “not in line with the ECJ case-law and fundamental
rights”[1]:

The French and Danish attempt to justify indiscriminate retention of
telephone calling records and location data by claiming a permanent
threat to national security is dismissed. Likewise plans of the EU
Commission and Belgium to capture the vast majority of the population by
way of ex-tensive “geographically targeted retention” fails legal scrutiny.

“The bulk collection of information on non-suspects everyday
communications and movements constitutes an unprecedented attack on our
right to privacy and is the most invasive method of mass surveillance
directed against the state’s own citizens”, comments Patrick Breyer,
Pirate Party Member of the European Parliament who commissioned the
legal opinion. “The anecdotal results are nowhere close to the damage
this surveillance weapon inflicts on our societies, as a recent survey
found.[2] The persistent violation of fundamental rights, circumvention
of case-law, pres-suring of judges and ignorance of facts is an attack
on the rule of law we need to stop!”

National Security: No Free Ride for Mass Surveillance

Under massive pressure by EU governments, the European Court of Justice
allowed Member States to impose general and indiscriminate retention of
all call detail records and location data only where exceptionally
needed to counter a present of foreseeable threat to national security,
such as a terrorist attack. A French administrative court (Conseil
d’Etat) however invoked this ex-ception permanently, pointing to the
general risk of terrorism and past attacks in France as well as
espionage and foreign interference. France has continued permanently
imposing indiscriminate data retention by relying on this ruling.

According to the legal opinion however, the French court’s decision
“fails to demonstrate a specif-ic threat to national security because
... it refers to a mere general risk of terrorism and past at-tacks in
France. I did not find any evidence given for the specific or identified
preparation of a specific future attack. Insofar, the Decision is not in
line with the ECJ case-law and fundamental rights.”

quảng cáo

Breyer comments: “We are yet to see evidence that untargeted data
retention ever prevented even a single terrorist attack. The fact that
several such attacks have taken place in France with blanket retention
requirements in place does not support this assumption. Setting this
issue aside, it is difficult to imagine that a specific terrorist threat
could not be countered by means of targeted retention.”

Earlier this week the Court of Justice already dismissed the French
approach to justify data reten-tion with national security needs but
access the data for other purposes (prosecution of crime).

"Targeted” data retention: Plans violate citizen's fundamental rights

A secret EU Commission non-paper dated 10 June 2021[3] suggests to
Member State governments a variety of options to making data retention
mandatory throughout the EU once again. Several of these proposals are
excessive and non-compliant, the legal opinion explains. The proposals
for “geographical targeting ... may lead to imposing unjustified legal
obligations on providers to re-tain traffic and location data in very
broad and indefinite geographic areas”.

Cụ thể hơn:

1) The Commission proposes to apply data retention to all persons in
areas with (even slightly) above average crime rates. Since cities tend
to have an above-average crime rate, this approach could expose more
than 80% of the population to data retention. The legal opinion finds
that this approach is not permitted and a “high” (not just above
average) incidence of serious crime in an area is required to justify
applying data retention.

2) The Commission proposes to apply data retention to all persons within
"a certain radius around sensitive critical infrastructure sites,
transport hubs, (…) affluent neighbourhoods, places of wor-ship,
schools, cultural and sports venues, political gatherings and
international summits, houses of parliament, law courts, shopping malls
etc." The legal opinion finds that this list does not com-ply to legal
requirements and warns that by applying these criteria data retention
“may even be-come general and indiscriminate in broad areas covering a
big part of the territory and the infra-structure of a Member State”.
Among the sites listed by the Comission only those which "regularly
receive a very high volume of visitors" and are "particularly vulnerable
to the commission of seri-ous criminal offences" may be covered. There
is also no legal basis for covering a radius around those sites. And
Prof. Dr. iur. Vilenas Vadapalas warns that "especially the sites of
worship and political gatherings host particularly sensitive activities
revealing religion and political opinion”.

3) The Commission proposes to apply data retention to all “associates”
of potential suspects, without requiring to verify that such persons
represent a specific threat of committing serious criminal acts. This is
not in line with the ECJ case-law and fundamental rights.

Breyer concludes: “The EU Commission now finally needs to do its job and
start enforcing the landmark rulings, instead of plotting to bring back
data retention.”

[1] Full text of legal opinion (funded by Greens/EFA group):
https://www.patrick-breyer.de/wp-content/uploads/2022/04/20220407_Legal_Opinion_Data_Retention.pdf

[2]

Survey: Chilling effect of indiscriminate data retention causes wide-spread harms

[3]

Breyer: Stop the return of indiscriminate and general communications data retention!

Tiến sĩ Patrick Breyer
Europaabgeordneter der piratenpartei
Thành viên của Nghị viện Châu Âu cho Đảng Cướp biển Đức

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