The Data Retention War is about to re-start in Europe

A new battle is brewing in Europe on the issue of retention of traffic and location data of telecommunications. The most significant pieces of the puzzle: 

A) The French government announced it will argue in the Conseil d’Etat that the decision of the CJEU in La Quadrature du Net, which found the national French data retention rules to be incompatible with EU law, was ultra vires, meaning that it affects the constitutional identity of France and that it should not be applied. 

B) France, Spain and the Netherlands are putting pressure in the European Council to adopt new rules allowing for retention of metadata of communications, after the former Data Retention Directive was invalidated by the Court of Justice of the EU in 2014 in the Digital Rights Ireland case. They say new legislation is “needed urgently”. 

C) France managed to introduce a provision allowing for data retention measures in the Council version of the ePrivacy Regulation. 

D) The Court of Justice of the EU continued this week its series of decisions limiting data retention measures. The Court found in HK v Prokuratuur that crime that is not serious cannot justify access to traffic and location data, not even for a short period of time and not even to a small amount of data, solely on the basis of an order of the public prosecutor. The crime needs to be “serious”.

E) Importantly, several Constitutional Courts of Member States have found previous data retention measures unconstitutional, some of them even before the CJEU invalidated the Data Retention Directive in Digital Rights Ireland (2014).

So a battle is indeed brewing, between governments and their policing needs, and Courts and their line on defending fundamental rights in the digital age.