Legal Frameworks for Hacking by Law Enforcement: Identification, Evaluation and Comparison of Practices

EXECUTIVE SUMMARY OF A STUDY FOR THE EP LIBE COMMITEE.

FULL TEXT ACCESSIBLE  HERE  

by Mirja  GUTHEIL, Quentin  LIGER, Aurélie  HEETMAN, James  EAGER, Max  CRAWFORD  (Optimity  Advisors)

Hacking by law enforcement is a relatively new phenomenon within the framework of the longstanding public policy problem of balancing security and privacy. On the one hand, law enforcement agencies assert that the use of hacking techniques brings security, stating that it represents a part of the solution to the law enforcement challenge of encryption and ‘Going Dark’ without systematically weakening encryption through the introduction of ‘backdoors’ or similar techniques. On the other hand, civil society actors argue that hacking is extremely invasive and significantly restricts the fundamental right to privacy. Furthermore, the use of hacking practices pits security against cybersecurity, as the exploitation of cybersecurity vulnerabilities to provide law enforcement with access to certain data can have significant implications  for  the security of the internet.

Against this backdrop, the present study provides the LIBE Committee with relevant, actionable insight into the legal frameworks and practices for hacking by law enforcement. Firstly, the study examines the international and EU-level debates on the topic of hacking by law enforcement (Chapter 2), before analysing the possible legal bases for EU intervention in the field (Chapter 3). These chapters set the scene for the primary focus of the study: the comparative analysis of legal frameworks and practices for hacking by law enforcement across six selected Member States (France, Germany, Italy, the Netherlands, Poland and the UK), with further illustrative examples from three non-EU countries (Australia, Israel and the US) (Chapter 4). Based on these analyses, the study concludes (Chapter 5) and presents concrete recommendations and policy proposals for  EU  action  in  the field (Chapter 6).

The international and EU-level debates on the use of hacking techniques by law enforcement primarily evolve from the law enforcement challenge posed by encryption – i.e. the  ‘Going  Dark’  issue.

Going Dark is a term used to describe [the] decreasing ability [of law enforcement agencies] to lawfully access and examine evidence at rest on devices and evidence in motion across   communications   networks.1

According to the International Association of Chiefs of Police (IACP), law enforcement agencies are not able to investigate illegal activity and prosecute criminals without this evidence. Encryption technologies are cited as one of the major barriers to this access. Although recent political statements from several countries (including France, Germany, the UK and the US) seemingly call for ‘backdoors’ to encryption technologies, support for strong encryption at international and EU fora remains strong. As such, law enforcement agencies across the world started to use hacking techniques to bypass encryption. Although the term ‘hacking’ is not used by law enforcement agencies, these practices essentially mirror the techniques used by hackers (i.e. exploiting any possible vulnerabilities – including technical, system  and/or human  vulnerabilities  – within  an  information  technology  (IT) system).

Law enforcement representatives, such as the IACP and Europol, report that access to encrypted and other data through such hacking techniques brings significant investigative benefits. However, it is not the only possible law enforcement solution to the ‘Going Dark’ issue. Outside of the scope of this study, the other options include: requiring users to provide their password or decrypt their data; requiring technology vendors and service providers to bypass   the   security   of   their   own   products   and   services;   and   the    systematic   weakening   of encryption through the mandated introduction of ‘backdoors’ and/or weakened standards for encryption.

With the benefits of hacking established, a 2016 Joint Statement published by the European Union Agency for Network and Information Security (ENISA) and Europol2 noted that the use of  hacking  techniques also brings  several   key  risks.

The primary risk relates to the fundamental right to privacy and freedom of expression and information, as enshrined in international, EU and national-level law. Hacking techniques are extremely invasive, particularly when compared with traditionally intrusive investigative tools (e.g. wiretapping, house searches etc.). Through hacking, law enforcement can gain access to all data stored or in transit from a device; this represents a significant amount of data (e.g. a recent investigation by Dutch law enforcement collected seven terabytes of data, which translates into around 86 million pages of Microsoft Word documents3), as well as extremely sensitive data (e.g. a person’s location and movements, all communications, all stored data etc.). Consequently, the use of hacking techniques will inherently restrict the fundamental right to privacy.

Therefore, current debates at international and EU fora focus on assessing and providing recommendations on the current legal balances and safeguards for the restriction of the right to privacy by hacking techniques. However, these debates have assumed that hacking practices are necessary for law enforcement and simply require governing laws; they have not discussed whether the use of hacking techniques by law enforcement is necessary and proportional. The law enforcement assertions regarding the necessity of these invasive tools have  not   been  challenged.

The second key risk relates to the security of the internet. Law enforcement use of hacking techniques has the potential to significantly weaken the security of the internet by “[increasing] the attack surface for malicious abuse”4. Given that critical infrastructure and defence organisations, as well as law enforcement agencies themselves, use the technologies targeted and potentially weakened by law enforcement hacking, the potential ramifications reach  far  beyond  the intended  target.

As such, debates at international and EU fora focus on the appropriate balances between security and privacy, as well as security and cybersecurity. Regarding security v. privacy, the debates to date have assessed and provided recommendations on the legislative safeguards required to ensure that hacking techniques are only permitted in situations where a restriction of the fundamental right to privacy is valid in line with EU legislation (i.e. legal, necessary and proportional). Regarding security v. cybersecurity, the debates have been limited and primarily centre around the use and/or reporting of zero-day vulnerabilities discovered  by  law enforcement agencies.

Further risks not discussed in the Joint Statement but covered by this study include: the risks to territorial sovereignty – as law enforcement agencies may not know the physical location of the target data; and the risks related to the supply and use of commercially-developed hacking tools by governments with poor consideration for human rights.

Alongside the analysis of international and EU debates, the study presents hypotheses on the legal  bases  for  EU  intervention  in  the  field. Although  possibilities for  EU  legal  intervention  in several areas are discussed, including mutual admissibility of evidence (Art. 82(2) TFEU), common investigative techniques (Art. 87(2)(c) TFEU), operational cooperation (Art. 87(3) TFEU) and data protection (Art. 16 TFEU, Art. 7 & 8 EU Charter), the onus regarding the development of legislation in the field is with the Member States. As such, the management of the risks associated with law enforcement activities is governed at the Member State level.

As suggested by the focus of the international and EU discussions, concrete measures need to be stipulated at national-level to manage these risks. This study presents a comparative analysis of the legal frameworks for hacking by law enforcement across six Member States, as well as certain practical aspects of hacking by law enforcement, thereby providing an overview of the primary Member State mechanisms for the management of these risks. Further illustrative examples are provided from research conducted in three non-EU countries.

More specifically, the study examines the legal and practical balances and safeguards implemented at national-level to ensure: i) the legality, necessity and proportionality of restrictions to the fundamental  right  to  privacy;   and ii) the security  of  the internet.

Regarding restrictions to the right to privacy, the study first examines the existence of specific legal frameworks for hacking by law enforcement, before exploring the ex-ante and ex-post conditions and mechanisms stipulated to govern restrictions of the right to privacy and ensure they are legal, necessary  and  proportional.

It is found that hacking practices are seemingly necessary across all Member States examined, as four Member States (France, Germany, Poland and the UK) have adopted specific legislative provisions and the remaining two are in the legislative process. For all Member States except Germany, the adoption of specific legislative provisions occurred in 2016 (France, Poland and the UK) or will occur later (Italy, the Netherlands).  This  confirms the  new  nature  of these investigative techniques.

Additionally, law enforcement agencies in all Member States examined have used, or still use, hacking techniques in the absence of specific legislative provisions, under so-called ‘grey area’ legal provisions. Given the invasiveness of hacking techniques, these grey areaprovisions are considered  insufficient  to adequately  protect the right to privacy.

Where specific legal provisions have been adopted, all stakeholders agree that a restriction of the right to privacy requires the implementation of certain safeguards. The current or proposed legal frameworks of all six Member States comprise a suite of ex-ante conditions and ex-post mechanisms that aim to ensure the use of hacking techniques is proportionate and necessary. As recommended by various UN bodies, the provisions of primary importance include judicial authorisation of hacking practices, safeguards related to the nature, scope and duration of possible measures (e.g. limitations to crimes of a certain gravity and the  duration  of  the hack,  etc.) and  independent   oversight.

Although many of these types of recommended conditions are common across the Member States examined – demonstrated in the below table – their implementation parameters differ. For instance, both German and Polish law permit law enforcement hacking practices without judicial authorisation in exigent circumstance if judicial authorisation is achieved in a specified timeframe. However, the timeframe differs (three days in Germany compared with five days in Poland). These differences make significant difference, as the Polish timeframe was criticised  by the Council  of  Europe’s  Venice Commission  for being  too long.5

Furthermore, the Member States examined all accompany these common types of ex-ante and ex-post conditions with different, less common conditions. This is particularly true for ex-post oversight mechanisms. For instance, in Poland, the Minister for internal affairs provides macro-level information to the lower (Sejm) and upper (Senat) chambers of Parliament;6 and in the UK, oversight is provided by the Investigatory Powers Commissioner, who reviews all cases of hacking by law enforcement, and the Investigatory Powers Tribunal, which  considers disputes or  complaints surrounding  law enforcement  hacking.7

Key ex-ante considerations
Judicial authorisation The    legal    provisions    of    all    six    Member    States    require    ex-ante judicial        authorisation        for        law        enforcement        hacking.        The information  to  be  provided  in  these requests differ.

Select     Member     States     (e.g.     Germany,     Poland,     the     UK)     also provide for hacking without prior judicial authorisation in exigent circumstances  if  judicial  authorisation  is subsequently  provided. The timeframes  for  ex-post authorisation  differ.

Limitation by crime and  duration All  six Member  States  restrict  the  use  of  hacking  tools  based  on the   gravity   of   crimes.    In    some    Member   States,    the    legislation presents  a  specific  list  of  crimes  for  which  hacking  is permitted; in     others,     the    limit    is    set     for    crimes    that    have    a    maximum custodial    sentence   of   greater   than    a   certain   number    of   years. The lists and numbers  of years required differ by Member   State.

Many Member States also restrict the duration for which hacking may   be   used.   This   restriction   ranges   from   maximum   1   month (France, Netherlands) to a maximum of 6 months (UK), although extensions     are     permitted     under     the     same     conditions     in     all Member States.

Key ex-post considerations
Notification and effective remedy Most    Member    States    provide    for    the    notification    of    targets    of hacking  practices and  remedy  in  cases  of unlawful   hacking.
Reporting and oversight Primarily, Member States report at a micro-level through logging hacking  activities and  reporting them  in  case  files.

However,   some   Member   States   (e.g.   Germany,   Poland   and   the UK) have macro-level  review  and  oversight mechanisms.

Furthermore, as regards the issue of territoriality (i.e. the difficulty law enforcement agencies face obtaining the location of the data to be collected using hacking techniques), only one Member States, the Netherlands, legally permits the hacking of devices if the location is unknown. If the device turns out to be in another jurisdiction, Dutch law enforcement must apply  for Mutual  Legal  Assistance.

As such, when aggregated, these provisions strongly mirror Article 8 of the European Convention on Human Rights, as well as the UN recommendations and paragraph 95 of the ECtHR  judgement  in  Weber and  Saravia  v.  Germany.  However,   there are  many,  and  varied, criticisms when the Member State conditions are examined in isolation. Some of the provisions criticised include: the limits based on the gravity of crimes (e.g. the Netherlands, France and Poland); the provisions for notification and effective remedy (e.g. Italy and the Netherlands); the process for screening and deleting non-relevant data (Germany); the definition of devices that can be targeted (e.g. the Netherlands); the duration permitted for hacking (e.g. Poland); and a lack of knowledge amongst the judiciary (e.g. France, Germany, Italy and the Netherlands).With this said, certain elements, taken in isolation, can be called good  practices. Such  examples  are  presented below.

Select  good practice: Member State legislative frameworks

Germany: Although they were deemed unconstitutional in a 2016 ruling, the provisions for the screening and deletion of data related to the core area of private life are a positive step. If the provisions are amended, as stipulated in the ruling, to ensure screening by an independent body, they would provide strong protection for the targeted individual’s private data.

Italy: The 2017 draft Italian law includes a range of provisions related to the development and monitoring of the continued use of hacking tools. As such, one academic stakeholder remarked that the drafting of the law must have been driven by technicians. However, these provisions bring significant benefits to the legislative provisions in terms of supervision and oversight of the use of hacking tools. Furthermore, the Italian draft law takes great care to separate the functionalities of the hacking tools, thus protecting against the overuse or abuse of a  hacking tool’s  extensive  capabilities.

Netherlands: The Dutch Computer Crime III Bill stipulates the need to conduct a formal proportionality assessment for each hacking request, with the assistance of a dedicated Central Review Commission (Centrale Toetsings Commissie). Also, the law requires rules to be laid down on the authorisation and expertise of the investigation officers that can perform hacking.

With these findings in mind, the study concludes that the specific national-level legal provisions examined provide for the use of hacking techniques in a wide array of circumstances. The varied combinations of requirements, including those related to the gravity of crimes, the duration and purpose of operations and the oversight, result in a situation where the law does not provide for much stricter conditions than are necessary for less  intrusive  investigative activities such  as interception.

Based on the study findings,  relevant  and actionable policy proposals and recommendations have been developed under the two key elements: i) the fundamental right  to  privacy;  and  ii) the security  of the internet.

Recommendations and policy proposals: Fundamental  right  to  privacy

It is recommended that the use of ‘grey area’ legal provisions is not sufficient to protect the fundamental right to privacy. This is primarily because existing legal provisions do not provide for the more invasive nature of hacking techniques and do not provide for the legislative precision  and  clarity  as  required  under  the  Charter and the  ECHR.

Furthermore, many of these provisions have only recently been enacted. As such, there is a need for robust evidence-based monitoring and evaluation of the practical application of these provisions. It is therefore recommended that the application of these new legal provisions is evaluated regularly at national level, and that the results of these evaluations are  assessed at  EU-level.

If specific legislative provisions are deemed necessary, the study recommends a range of good practice, specific ex-ante and ex-post provisions governing the use of hacking practices by  law  enforcement  agencies. These are detailed  in  Chapter 6.

Policy proposal 1: The European Parliament should pass a resolution calling on Member States to conduct a Privacy Impact Assessment when new laws are proposed to permit and govern the use of hacking techniques by law enforcement agencies. This Privacy Impact Assessment should focus on the necessity and proportionality of the use of hacking tools and should  require input  from  national  data protection  authorities.

Policy proposal 2: The European Parliament should reaffirm the need for Member States to adopt a clear and precise legal basis if law enforcement agencies are to use hacking techniques.

Policy proposal 3: The European Parliament should commission more research or encourage the European Commission or other bodies to conduct more research on the topic. In response to the Snowden revelations, the European Parliament called on the EU Agency for Fundamental Rights (FRA) to thoroughly research fundamental rights protection in the context of surveillance. A similar brief related to the legal frameworks governing the use of hacking techniques by law enforcement across all EU Member States would act as an invaluable piece  of  research.

Policy proposal 4: The European Parliament should encourage Member States to undertake evaluation and monitoring activities on the practical application of the new legislative provisions  that  permit  hacking  by  law  enforcement  agencies.

Policy proposal 5: The European Parliament should call on the EU Agency for Fundamental Rights (FRA) to develop a practitioner handbook related to the governing of hacking by law enforcement. This handbook should be intended for lawyers, judges, prosecutors, law enforcement officers and others working with national authorities, as well as non­governmental organisations and other bodies confronted with legal questions in the areas set out by the handbook. These areas should cover the invasive nature of hacking techniques and relevant safeguards as per international and EU law and case law, as well as appropriate mechanisms for supervision  and   oversight.

Policy proposal 6: The European Parliament should call on EU bodies, such as the FRA, CEPOL and Eurojust, to provide training for national-level members of the judiciary and data protection authorities, in collaboration with the abovementioned handbook, on the technical means for hacking in use across the Member States, their potential for invasiveness and the principles of  necessity  and  proportionality in  relation  to these  technical  means.

Recommendations and policy proposals: Security of  the  internet

The primary recommendation related to the security of the internet is that the position of the EU against the implementation of ‘backdoors’ and similar techniques, and in support of strong encryption standards, should be reaffirmed, given the prominent role encryption plays in our society and its importance to the EU’s Digital Agenda. To support this position, the EU should ensure continued engagement with global experts in computer science as well as civil society privacy and  digital  rights groups.

The actual impacts of hacking by law enforcement on the security of the internet are yet unknown. More work should be done at the Member State level to assess the potential impacts such that these data can feed in to overarching discussions on the necessity and proportionality of law enforcement hacking. Furthermore, more work should be done, beyond understanding the risks to the security of the internet, to educate those involved in the authorisation and use of  hacking  techniques by law enforcement.

At present, the steps taken to safeguard the security of the internet against the potential risks of hacking are not widespread. As such, the specific legislative provisions governing the use of hacking techniques by law enforcement, if deemed necessary, should safeguard the security of the internet and the security of the device, including reporting the vulnerabilities used to gain access to a device to the appropriate technology vendor or service provider; and  ensure  the  full  removal  of  the software  or hardware from the targeted  device.

Policy proposal 7: The European Parliament should pass a resolution calling on Member States to conduct an Impact Assessment to examine the impact of new or existing laws governing  the  use  of hacking  techniques by  law  enforcement on  the  security  of  the internet.

Policy proposal 8: The European Parliament, through enhanced cooperation with Europol
and the European Union Agency for Network and Information Security (ENISA), should
reaffirm its commitment to strong encryption considering discussions on the topic of hacking by law enforcement. In addition, the Parliament should reaffirm its opposition to the implementation of  
backdoors and  similar techniques in information technology infrastructures or  services.

Policy proposal 9: Given the lack of discussion around handling zero-day vulnerabilities, the European Parliament should support the efforts made under the cybersecurity contractual Public-Private Partnership (PPP) to develop appropriate responses to handling zero-day vulnerabilities, taking into consideration the risks related to fundamental rights and the security  of the internet.

Policy proposal 10: Extending policy proposal 4, above, the proposed FRA handbook should also cover the risks  posed  to  the  security  of the  internet  by  using hacking  techniques.

Policy proposal 11: Extending policy proposal 5, training provided to the judiciary by EU bodies such as FRA, CEPOL and Eurojust should also educate these individuals on the risks posed  to  the security  of  the internet  by  hacking  techniques.

Policy proposal 12: Given the lack of discussion around the risks posed to the security of the internet by hacking practices, the European Parliament should encourage debates at the appropriate fora specific to understanding this risk and the approaches to managing this risk. It is encouraged that law enforcement representatives should be present within such discussions.

Parliamentary Tracker : the EP incoming resolution on the EU-USA (so called) “Privacy Shield”…

 

NOTA BENE : Below the text that will be submitted to vote at the next EP plenary. As in previous occasions the text is well drafted, legally precise and it confirms the high level of  competence that the European Parliament (and its committee LIBE) has developed along the last 17 years from the first inquiry on Echelon (2000), the Safe Harbor (2000), the EU-USA agreement on PNR (since 2003 a thirteen year long lasting saga…) the SWIFT agreement (2006) …

What is puzzling are the critics raised against the  so called “adequacy finding” mechanism which empowers the European Commission to decide if a third Country protect “adequately” the EU citizens personal data. The weaknesses of the Commission face to our strongest transatlantic ally  were already very well known when recently the parliamentarians have reformed the European legal framework on data protection in view of the new legal basis foreseen by the Treaties and in the art. 7 and 8 of the EU Charter.  However the EP did’nt try to strengthen the “adequacy” mechanism by transforming it at least in a “delegated” function (so that it would had been possible for the EP to block something which could had weackened our standards).

Now the US Congress is weakening the (already poor) US data protection and the new US administration will probably go in the same direction.  It seems to me to easy  to complain now on something that you had recently the chance to fix..

Let’s now hope that the Court of Justice by answering to the request for opinion on the EU-Canada PNR agreement will give to the EU legislator some additional recommendations but as an EU citizen I would had preferred a stronger EU legislation instead of been ruled by european or national Judges…

Emilio De Capitani

B8‑0235/2017 European Parliament resolution on the adequacy of the protection afforded by the EU-US Privacy Shield (2016/3018(RSP))

The European Parliament,

–        having regard to the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU) and Articles 6, 7, 8, 11, 16, 47 and 52 of the Charter of Fundamental Rights of the European Union,

–        having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive)[1],

–        having regard to Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters[2],

–        having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)[3], and to Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA[4],

–        having regard to the judgment of the Court of Justice of the European Union of 6 October 2015 in Case C-362/14 Maximillian Schrems v Data Protection Commissioner[5],

–        having regard to the Commission communication to the European Parliament and the Council of 6 November 2015 on the transfer of personal data from the EU to the United States of America under Directive 95/46/EC following the judgment by the Court of Justice in Case C-362/14 (Schrems) (COM(2015)0566),

–        having regard to the Commission communication to the European Parliament and the Council of 10 January 2017 on Exchanging and Protecting Personal Data in a Globalised World (COM(2017)0007),

–        having regard to the judgment of the Court of Justice of the European Union of 21 December 2016 in Cases C-203/15 Tele2 Sverige AB v Post- och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others[6],

–        having regard to Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield[7],

–        having regard to Opinion 4/2016 of the European Data Protection Supervisor (EDPS) on the EU-US Privacy Shield draft adequacy decision[8],

–        having regard to the Opinion of the Article 29 Data Protection Working Party of 13 April 2016 on the EU-US Privacy Shield draft adequacy decision[9] and its Statement of 26 July 2016[10],

–        having regard to its resolution of 26 May 2016 on transatlantic data flows[11],

–        having regard to Rule 123(2) of its Rules of Procedure,

  1. whereas the Court of Justice of the European Union (CJEU) in its judgment of 6 October 2015 in Case C-362/14 Maximillian Schrems v Data Protection Commissioner invalidated the Safe Harbour decision and clarified that an adequate level of protection in a third country must be understood to be ‘essentially equivalent’ to that guaranteed within the European Union by virtue of Directive 95/46/EC read in the light of the Charter of Fundamental Rights of the European Union (hereinafter ‘the EU Charter’), prompting the need to conclude negotiations on a new arrangement so as to ensure legal certainty on how personal data should be transferred from the EU to the US;
  2. whereas, when examining the level of protection afforded by a third country, the Commission is obliged to assess the content of the rules applicable in that country deriving from its domestic law or its international commitments, as well as the practice designed to ensure compliance with those rules, since it must, under Article 25(2) of Directive 95/46/EC, take account of all the circumstances surrounding a transfer of personal data to a third country; whereas this assessment must not only refer to legislation and practices relating to the protection of personal data for commercial and private purposes, but must also cover all aspects of the framework applicable to that country or sector, in particular, but not limited to, law enforcement, national security and respect for fundamental rights;
  3. whereas transfers of personal data between commercial organisations of the EU and the US are an important element for the transatlantic relationships; whereas these transfers should be carried out in full respect of the right to the protection of personal data and the right to privacy; whereas one of the fundamental objectives of the EU is the protection of fundamental rights, as enshrined in the EU Charter;
  4. whereas in its Opinion 4/2016 the EDPS raised several concerns on the draft Privacy Shield; whereas the EDPS welcomes in the same opinion the efforts made by all parties to find a solution for transfers of personal data from the EU to the US for commercial purposes under a system of self-certification;
  5. whereas in its Opinion 01/2016 on the EU-US Privacy Shield draft adequacy decision the Article 29 Working Party welcomed the significant improvements brought about by the Privacy Shield compared with the Safe Harbour decision whilst also raising strong concerns about both the commercial aspects and access by public authorities to data transferred under the Privacy Shield;
  6. whereas on 12 July 2016, after further discussions with the US administration, the Commission adopted its Implementing Decision (EU) 2016/1250, declaring the adequate level of protection for personal data transferred from the Union to organisations in the United States under the EU-US Privacy Shield;
  7. whereas the EU-US Privacy Shield is accompanied by several letters and unilateral statements from the US administration explaining, inter alia, the data protection principles, the functioning of oversight, enforcement and redress and the protections and safeguards under which security agencies can access and process personal data;
  8. whereas in its statement of 26 July 2016, the Article 29 Working Party welcomes the improvements brought by the EU-US Privacy Shield mechanism compared with Safe Harbour and commended the Commission and the US authorities for having taken into consideration its concerns; whereas the Article 29 Working Party indicates, nevertheless, that a number of its concerns remain, regarding both the commercial aspects and the access by US public authorities to data transferred from the EU, such as the lack of specific rules on automated decisions and of a general right to object, the need for stricter guarantees on the independence and powers of the Ombudsperson mechanism, and the lack of concrete assurances of not conducting mass and indiscriminate collection of personal data (bulk collection);
  9. Welcomes the efforts made by both the Commission and the US administration to address the concerns raised by the CJEU, the Member States, the European Parliament, data protection authorities (DPAs) and stakeholders, so as to enable the Commission to adopt the implementing decision declaring the adequacy of the EU-US Privacy Shield;
  10. Acknowledges that the EU-US Privacy Shield contains significant improvements regarding the clarity of standards compared with the former EU-US Safe Harbour and that US organisations self-certifying adherence to the EU-US Privacy Shield will have to comply with clearer data protection standards than under Safe Harbour;
  11. Takes note that as at 23 March 2017, 1 893 US organisations have joined the EU-US Privacy Shield; regrets that the Privacy Shield is based on voluntary self-certification and therefore applies only to US organisations which have voluntarily signed up to it, which means that many companies are not covered by the scheme;
  12. Acknowledges that the EU-US Privacy Shield facilitates data transfers from SMEs and businesses in the Union to the US;
  13. Notes that, in line with the ruling of the CJEU in the Schrems case, the powers of the European DPAs remain unaffected by the adequacy decision and they can, therefore, exercise them, including the suspension or the ban of data transfers to an organisation registered with the EU-US Privacy Shield; welcomes in this regard the prominent role given by the Privacy Shield Framework to Member State DPAs to examine and investigate claims related to the protection of the rights to privacy and family life under the EU Charter and to suspend transfers of data, as well as the obligation placed upon the US Department of Commerce to resolve such complaints;
  14. Notes with satisfaction that under the Privacy Shield Framework, EU data subjects have several means available to them to pursue legal remedies in the US: first, complaints can be lodged either directly with the company or through the Department of Commerce following a referral by a DPA, or with an independent dispute resolution body, secondly, with regard to interferences with fundamental rights for the purpose of national security, a civil claim can be brought before the US court and similar complaints can also be addressed by the newly created independent Ombudsperson, and finally, complaints about interferences with fundamental rights for the purposes of law enforcement and the public interest can be dealt with by motions challenging subpoenas; encourages further guidance from the Commission and DPAs to make those legal remedies all the more easily accessible and available;
  15. Acknowledges the clear commitment of the US Department of Commerce to closely monitor the compliance of US organisations with the EU-US Privacy Shield Principles and their intention to take enforcement actions against entities failing to comply;
  16. Reiterates its call on the Commission to seek clarification on the legal status of the ‘written assurances’ provided by the US and to ensure that any commitment or arrangement foreseen under the Privacy Shield is maintained following the taking up of office of a new administration in the United States;
  17. Considers that, despite the commitments and assurances made by the US Government by means of the letters attached to the Privacy Shield arrangement, important questions remain as regards certain commercial aspects, national security and law enforcement;
  18. Specifically notes the significant difference between the protection provided by Article 7 of Directive 95/46/EC and the ‘notice and choice’ principle of the Privacy Shield arrangement, as well as the considerable differences between Article 6 of Directive 95/46/EC and the ‘data integrity and purpose limitation’ principle of the Privacy Shield arrangement; points out that instead of the need for a legal basis (such as consent or contract) that applies to all processing operations, the data subject rights under the Privacy Shield Principles only apply to two narrow processing operations (disclosure and change of purpose) and only provide for a right to object (‘opt-out’);
  19. Takes the view that these numerous concerns could lead to a fresh challenge to the decision on the adequacy of the protection being brought before the courts in the future; emphasises the harmful consequences as regards both respect for fundamental rights and the necessary legal certainty for stakeholders;
  20. Notes, amongst other things, the lack of specific rules on automated decision-making and on a general right to object, and the lack of clear principles on how the Privacy Shield Principles apply to processors (agents);
  21. Notes that, while individuals have the possibility to object vis-à-vis the EU controller to any transfer of their personal data to the US, and to the further processing of those data in the US where the Privacy Shield company acts as a processor on behalf of the EU controller, the Privacy Shield lacks specific rules on a general right to object vis-à-vis the US self-certified company;
  22. Notes that only a fraction of the US organisations that have joined the Privacy Shield have chosen to use an EU DPA for the dispute resolution mechanism; is concerned that this constitutes a disadvantage for EU citizens when trying to enforce their rights;
  23. Notes the lack of explicit principles on how the Privacy Shield Principles apply to processors (agents), while recognising that all principles apply to the processing of personal data by any US self-certified company ‘[u]nless otherwise stated’ and that the transfer for processing purposes always requires a contract with the EU controller which will determine the purposes and means of processing, including whether the processor is authorised to carry out onward transfers (e.g. for sub-processing);
  24. Stresses that, as regards national security and surveillance, notwithstanding the clarifications brought by the Office of the Director of National Intelligence (ODNI) in the letters attached to the Privacy Shield framework, ‘bulk surveillance’, despite the different terminology used by the US authorities, remains possible; regrets the lack of a uniform definition of the concept of bulk surveillance and the adoption of the American terminology, and therefore calls for a uniform definition of bulk surveillance linked to the European understanding of the term, where evaluation is not made dependent on selection; stresses that any kind of mass surveillance is in breach of the EU Charter;
  25. Recalls that Annex VI (letter from Robert S. Litt, ODNI) clarifies that under Presidential Policy Directive 28 (hereinafter ‘PPD-28’), bulk collection of personal data and communications of non-US persons is still permitted in six cases; points out that such bulk collection only has to be ‘as tailored as feasible’ and ‘reasonable’, which does not meet the stricter criteria of necessity and proportionality as laid down in the EU Charter;
  26. Deplores the fact that the EU-US Privacy Shield does not prohibit the collection of bulk data for law enforcement purposes;
  27. Stresses that in its judgment of 21 December 2016, the CJEU clarified that the EU Charter ‘must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication’; points out that the bulk surveillance in the US therefore does not provide for an essentially equivalent level of the protection of personal data and communications;
  28. Is alarmed by the recent revelations about surveillance activities conducted by a US electronic communications service provider on all emails reaching its servers, upon request of the National Security Agency (NSA) and the FBI, as late as 2015, i.e. one year after Presidential Policy Directive 28 was adopted and during the negotiation of the EU-US Privacy Shield; insists that the Commission seek full clarification from the US authorities and make the answers provided available to the Council, Parliament and national DPAs; sees this as a reason to strongly doubt the assurances brought by the ODNI; is aware that the EU-US Privacy Shield rests on PPD-28, which was issued by the President and can also be repealed by any future President without Congress’s consent;
  29. Expresses great concerns at the issuance of the ‘Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the National Security Agency under Section 2.3 of Executive Order 12333’, approved by the Attorney General on 3 January 2017, allowing the NSA to share vast amounts of private data gathered without warrants, court orders or congressional authorisation with 16 other agencies, including the FBI, the Drug Enforcement Agency and the Department of Homeland Security; calls on the Commission to immediately assess the compatibility of these new rules with the commitments made by the US authorities under the Privacy Shield, as well as their impact on the level of personal data protection in the United States;
  30. Deplores the fact that neither the Privacy Shield Principles nor the letters of the US administration providing clarifications and assurances demonstrate the existence of effective judicial redress rights for individuals in the EU whose personal data are transferred to a US organisation under the Privacy Shield Principles and further accessed and processed by US public authorities for law enforcement and public interest purposes, which were emphasised by the CJEU in its judgment of 6 October 2015 as the essence of the fundamental right in Article 47 of the EU Charter;
  31. Recalls its resolution of 26 May 2016 stating that the Ombudsperson mechanism set up by the US Department of State is not sufficiently independent and is not vested with sufficient effective powers to carry out its duties and provide effective redress to EU individuals; notes that according to the representations and assurances provided by the US Government the Office of the Ombudsperson is independent from the US intelligence services, free from any improper influence that could affect its function and moreover works together with other independent oversight bodies with effective powers of supervision over the US Intelligence Community; is generally concerned that an individual affected by a breach of the rules can apply only for information and for the data to be deleted and/or for a stop to further processing, but has no right to compensation;
  32. Regrets that the procedure of adoption of an adequacy decision does not provide for a formal consultation of relevant stakeholders such as companies, and in particular SMEs’ representation organisations;
  33. Regrets that the Commission followed the procedure for adoption of the Commission implementing decision in a practical manner that de facto has not enabled Parliament to exercise its right of scrutiny on the draft implementing act in an effective manner;
  34. Calls on the Commission to take all the necessary measures to ensure that the Privacy Shield will fully comply with Regulation (EU) 2016/679, to be applied as from 16 May 2018, and with the EU Charter;
  35. Calls on the Commission to ensure, in particular, that personal data that has been transferred to the US under the Privacy Shield can only be transferred to another third country if that transfer is compatible with the purpose for which the data was originally collected, and if the same rules of specific and targeted access for law enforcement apply in the third country;
  36. Calls on the Commission to monitor whether personal data which is no longer necessary for the purpose for which it had been originally collected is deleted, including by law enforcement agencies;
  37. Calls on the Commission to closely monitor whether the Privacy Shield allows for the DPAs to fully exercise all their powers, and if not, to identify the provisions that result in a hindrance to the DPAs’ exercise of powers;
  38. Calls on the Commission to conduct, during the first joint annual review, a thorough and in-depth examination of all the shortcomings and weaknesses referred to in this resolution and in its resolution of 26 May 2016 on transatlantic data flows, and those identified by the Article 29 Working Party, the EDPS and the stakeholders, and to demonstrate how they have been addressed so as to ensure compliance with the EU Charter and Union law, and to evaluate meticulously whether the mechanisms and safeguards indicated in the assurances and clarifications by the US administration are effective and feasible;
  39. Calls on the Commission to ensure that when conducting the joint annual review, all the members of the team have full and unrestricted access to all documents and premises necessary for the performance of their tasks, including elements allowing a proper evaluation of the necessity and proportionality of the collection and access to data transferred by public authorities, for either law enforcement or national security purposes;
  40. Stresses that all members of the joint review team must be ensured independence in the performance of their tasks and must be entitled to express their own dissenting opinions in the final report of the joint review, which will be public and annexed to the joint report;
  41. Calls on the Union DPAs to monitor the functioning of the EU-US Privacy Shield and to exercise their powers, including the suspension or definitive ban of personal data transfers to an organisation in the EU-US Privacy Shield if they consider that the fundamental rights to privacy and the protection of personal data of the Union’s data subjects are not ensured;
  42. Stresses that Parliament should have full access to any relevant document related to the joint annual review;
  43. Instructs its President to forward this resolution to the Commission, the Council, the governments and national parliaments of the Member States and the US Government and Congress.

NOTES
[1] OJ L 281, 23.11.1995, p. 31.
[2] OJ L 350, 30.12.2008, p. 60.
[3] OJ L 119, 4.5.2016, p. 1.
[4] OJ L 119, 4.5.2016, p. 89.
[5] ECLI:EU:C:2015:650.
[6] ECLI:EU:C:2016:970.
[7] OJ L 207, 1.8.2016, p. 1.
[8] OJ C 257, 15.7.2016, p. 8.
[9] http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2016/wp238_en.pdf
[10] http://ec.europa.eu/justice/data-protection/article-29/press-material/press-release/art29_press_material/2016/20160726_wp29_wp_statement_eu_us_privacy_shield_en.pdf
[11] Texts adopted, P8_TA(2016)0233.

The Mejiers Committee on the inter-parliamentary scrutiny of Europol

ORIGINAL PUBLISHED ON THE MEJIERS COMMITTE (*) PAGE  HERE

  1. Introducton

Article 88 TFEU provides for a unique form of scrutiny on the functioning of Europol. It lays down that the [regulations on Europol] shall also lay down the procedures for scrutiny of Europol’s activities by the European Parliament, together with national Parliaments.

Such a procedure is now laid down in Article 51 of the Europol Regulation (Regulation (EU) 2016/794), which provides for the establishment of a “specialized Joint Parliamentary Scrutiny Group (JPSG)”, which will play the central role in ensuring this scrutiny. The Europol Regulation shall apply from 1st of May 2017.

Article 51 of the Europol Regulation also closely relates to Protocol (1) of the Lisbon Treaty on the role of national parliaments in the EU. Article 9 of that protocol provides: “The European Parliament and national Parliaments shall together determine the organization and promotion of effective and regular inter-parliamentary cooperation within the Union.”

Article 51 (2) does not only lay down the basis for the political monitoring of Europol’s activities (the democratic perspective), but also stipulates that “in fulfilling its mission”, it should pay attention to the impact of the activities of Europol on the fundamental rights and freedoms of natural persons (the perspective of the rule of law).

The Meijers Committee takes the view that improving the inter-parliamentary scrutiny of Europol, with appropriate involvement of both the national and the European levels, will by itself enhance the attention being paid by Europol on the perspectives of democracy and the rule of law, and more in particular the fundamental rights protection. It will raise the alertness of Europol as concerns these perspectives.

Moreover, the scrutiny mechanism could pay specific attention to the fundamental rights protection within Europol. This is particularly important in view of the large amounts of – often sensitive – personal data processed by Europol and exchanged with national police authorities of Member States and also with authorities of third countries.

The implementation of Article 51 into practice is currently debated, e.g. in the inter-parliamentary committee of the European Parliament and national parliaments.1 As specified by Article 51 (1) of the Europol regulation, the organization and the rules of procedure of the JPSG shall be determined.

The Meijers Commitee wishes to engage in this debate and makes, in this note, recommendations on the organization and rules of procedure.

  1. Context

Continue reading

TELE2 SVERIGE AB AND WATSON ET AL: CONTINUITY AND …RADICAL CHANGE

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG  (JANUARY 12, 2017)
By Orla Lynskey

 

Introduction

The CJEU delivered its judgment in Tele2 Sverige AB and Watson on 21 December 2016. The Court had been asked by a Swedish and British court respectively to consider the scope and effect of its previous judgment in Digital Rights Ireland (discussed here). The judgment reflects continuity in so far as it follows in the line of this, and earlier judgments taking a strong stance on data protection and privacy. Yet, the degree of protection it offers these rights over competing interests, notably security, is radical. In particular, the Court unequivocally states that legislation providing for general and indiscriminate data retention is incompatible with the E-Privacy Directive, as read in light of the relevant EU Charter rights. While the judgment was delivered in the context of the E-Privacy Directive, the Court’s reasoning could equally apply to other EU secondary legislation or programmes interpreted in light of the Charter. This judgment will be a game-changer for state surveillance in Europe and while it offered an early Christmas gift to privacy campaigners, it is likely to receive a very mixed reaction from EU Member States as such. While national data retention legislation has been annulled across multiple Member States (Bulgaria, Czech Republic, Cyprus, Germany and Romania), this annulment has been based on an assessment of the proportionality of the relevant measures rather than on a finding that blanket retention is per se unlawful. For those familiar with the facts and findings, skip straight to the comment below.

Facts

The preliminary ruling stems from two Article 267 TFEU references regarding the interpretation of the Court’s judgment in Digital Rights Ireland (henceforth DRI). The first, Tele2 Sverige AB, was a Swedish reference resulting from the refusal by Tele2 Sverige (a Swedish electronic communications provider) to continue to retain electronic communications data following the finding in DRI that the Data Retention Directive was invalid. A dispute regarding the interpretation of DRI ensued and the Swedish Justice Minister commissioned a report to assess the compatibility of Swedish law with EU law and the ECHR. This report concluded that DRI could not be interpreted as prohibiting general and indiscriminate data retention as a matter of principle, or as establishing criteria – all of which must be fulfilled – in order for legislation to be deemed proportionate. Rather, it held that it was necessary to conduct an assessment of all the circumstances in order to determine the compatibility of Swedish legislation with EU law. Tele2 Sverige maintained that the report was based on a misinterpretation of DRI. Given these differing perspectives, the referring court asked the Court to give ‘an unequivocal ruling on whether…the general and indiscriminate retention of electronic communications data is per se incompatible with Articles 7 and 8 and 52(1) of the Charter’ [50].

The second preliminary reference (Watson) arose before the Court of Appeal in the context of applications for judicial review of the UK’s Data Retention and Investigatory Powers Act (DRIPA) on the grounds that this Act was incompatible with the EU Charter and the ECHR. It was disputed before the national court whether DRI laid down ‘mandatory requirements of EU law’ that national legislation for communications data retention and access must respect. The domestic referring court suggested that it was appropriate to distinguish between legislation governing retention, and legislation governing access. DRI was confined to an assessment of the former as it assessed the validity of the Data Retention Directive, which excluded provisions relating to data access. The latter, provisions on data access, must be subject to a distinct validity assessment in light of their differing context and objectives, according to the referring court. The Court of Appeal did not however deem the answer to this question obvious, given that six courts in other EU Member States had declared national legislation to be invalid on the basis of DRI. It therefore asked the Court to consider whether, firstly, DRI lays down mandatory requirements of EU law that would apply to the regime governing access to retained data at national level. It also asked whether DRI expands the scope of the Charter rights to data protection and privacy beyond the scope of Article 8 ECHR. The Watson reference was dealt with pursuant to the expedited procedure provided for in Article 105(1) of the Court’s Rules of Procedure and joined to the Tele2 Sverige reference for oral arguments and judgment.

Findings of the Court

The Scope of the E-Privacy Directive

The Court examined, as a preliminary point, whether national legislation on retention and access to data fell within the scope of the E-Privacy Directive. Article 15(1) of that Directive provides for restrictions to certain rights it provides for when necessary for purposes such as national security and the prevention, investigation, detection and prosecution of criminal offences. Article 15(1) also allows for the adoption of data retention legislation by Member States. However, Article 1(3) of that Directive states that the Directive will not apply to, amongst others, ‘activities concerning public security, defence, State security (…) and the activities of the State in areas of criminal law’. There is thus an apparent internal inconsistency within the Directive.

To guide its findings, the Court had regard to the general structure of the Directive. While the Court acknowledged that the objectives pursued by Articles 1(3) and 15(1) overlap substantially, it held that Article 15(1) of the Directive would be deprived of any purpose if the legislative measures it permits were excluded from the scope of the Directive on the basis of Article 1(3) [73]. Indeed, it held that Article 15(1) ‘necessarily presupposes’ that the national measures referred to therein fall within the scope of that directive ‘since it expressly authorizes the Member States to adopt them only if the conditions laid down in the directive are met’. [73]. In order to support this finding, the Court suggests that the legislative measures provided for in Article 15(1) apply to providers of electronic communications services [74] and extend to measures requiring data retention [75] and access to retained data by national authorities [76]. It justifies this final claim – that the E-Privacy Directive includes data access legislation – on the (weak) grounds that recital 21 of the directive stipulates that the directive’s aim is to protect confidentiality by preventing unauthorised access to communications, including ‘any data related to such communications’ [77]. The Court emphasises that provisions on data access must fall within the scope of the Directive as data is only retained for the purpose of access to it by competent national authorities and thus national data retention legislation ‘necessarily entails, in principle, the existence of provisions relating to access by the competent national authorities to the data retained’ [79]. The Court also noted that the Directive requires providers to establish internal procedures for responding to requests for access based on the relevant provisions of national law [80].

The compatibility of ‘general and indiscriminate’ data retention with EU law

The Court then moved on to consider the most important substantive point in the judgment: the compatibility of ‘general and indiscriminate’ data retention with the relevant provisions of EU law. It began by recalling that the E-Privacy Directive’s overarching aim is to offer users of electronic communications services protection against the risks to fundamental rights brought about by technological advances [83]. It emphasised, in particular, the general principle of confidentiality of communications in Article 5(1) of the Directive and the related safeguards for traffic data and location data (in Articles 6 and 9 respectively), [85-87]. While the Court acknowledged that Article 15(1) of the Directive allows for exceptions to these principles by restricting their scope, it held that this provision must be interpreted strictly. It clearly stated that Article 15(1) cannot permit the exception to the Directive’s confidentiality obligation to become the rule, as this would render the confidentiality obligation meaningless [89].

The Court also emphasised that according to Article 15(1)’s wording it must be interpreted in light of general principles of EU law, thus including the fundamental rights in the EU Charter [91]. The Court noted, with reference to its previous case-law, the importance of the fundamental rights engaged in the current context, namely the right to privacy (Article 7), the right to data protection (Article 8) and the right to freedom of expression (Article 11) ([92]-[93]). The limitations on the exercise of these Charter rights are echoed in the E-Privacy Directive, recital 11 of which states that measures derogating from its principles must be ‘strictly’ proportionate to the intended purpose, while Article 15(1) itself specifies that data retention should be ‘justified’ by reference to one of the  objectives stated in Article 15(1) and be for a ‘limited period’ [95]. In considering whether national legislation complies with these requirements of strict necessity, the Court observed that ‘the legislation provides for a general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication’ and that the retention obligation on providers is ‘to retain the data systematically and continuously, with no exceptions’ [97].

Having established the scope of the retention obligation, the Court emphasised the revealing nature of this data and recalled its finding in DRI that the data ‘taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained’ [98]. The Court also stated that the data provides the means of profiling the individual concerned and – importantly – that the information is ‘no less sensitive having regard to the right to privacy, than the actual content of the communications’ [99]. The Court held that general and indiscriminate data retention legislation entailed a particularly serious interference with the rights to privacy and data protection and that the user concerned is, as a result, likely to feel that their private lives are the subject of constant surveillance [100]. It could also, according to the Court, affect the use of means of electronic communication and thus the exercise by users of their freedom of expression [101]. The Court therefore held that only the objective of fighting serious crime could justify national data retention legislation [102].

While the Court acknowledged that the fight against serious crime may depend on modern investigative techniques for its effectiveness, this objective cannot in itself justify the finding that general and indiscriminate data retention legislation is necessary for this fight against crime [103]. It noted in particular that such legislation applies to persons for whom ‘there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious criminal offences’ and that no exception is made for those whose communications are subject to professional secrecy [106]. As a result of these failings, the Court held that the national legislation exceeds the limits of what is strictly necessary and cannot be considered justified under Article 15(1), read in light of the Charter [107].

The Court did not go so far as to deem all data retention unlawful however. It highlighted that Article 15(1) does not prevent a Member State from introducing legislation that would facilitate targeted retention of traffic and location data for the preventive purpose of fighting serious crime. Such legislation must however be limited to what is strictly necessary in terms of the categories of data retained; the means of communication affected, the persons and the period of time concerned [108]. In particular, such legislation should indicate ‘in what circumstances and under which conditions’ a data retention measure could be adopted as a preventive measure [109]. The Court also emphasised that while the precise contours may vary, data retention should meet objective criteria that establish a connection between the data to be retained and the objective pursued [110]. The national legislation must therefore be evidence-based: this objective evidence should make it possible to ‘identify a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offences’ [111].

Mandatory Requirements of DRI?

Having established the incompatibility of generalised data retention legislation with EU law, the Court then went on to consider whether EU law precludes national data retention and access legislation if that legislation:

  • does not restrict access solely to the objective of fighting serious crime;
  • does not require access to be subject to prior review by a court or independent body
  • and, if it does not require that the data should be retained within the EU [114].

The Court reiterated an early finding that access to retained data must be for one of the exhaustive objectives identified in Article 15(1) of the E-Privacy Directive, and that only the objective of fighting serious crime would justify access to retained data [115]. Such legislation must also set out clear and precise rules indicating when and how competent national authorities should be granted access to such data [117]. The Court also held that national legislation must set out the substantive and procedural conditions governing access based on objective criteria [118-119]. Such access can, ‘as a general rule’ be granted only ‘to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime’ [119]. Access to the data of others might exceptionally be granted where, for instance, vital national interests are threatened by terrorist activities, if there is objective evidence to reflect the effective contribution access to such data could make [119]. As a result, access to retained data should, with the exception of cases of validly established urgency, be subject to a prior review by a court or an independent administrative authority at the request of the competent national authorities [120]. These competent national authorities must also notify the persons affected by the data access, under the applicable national procedures, as soon as such notification no longer jeopardises the investigations. The Court highlighted that such notice is necessary to enable these individuals to exercise their right to a legal remedy pursuant to the Directive and EU data protection law [121].

On the issue of data security, the Court held that Article 15(1) does not allow Member States to derogate from the Directive’s data security provisions, which require providers to take appropriate technical and organisational measures to ensure the effective protection of retained data. The Court held that a particularly high level of data security was appropriate given the quantity and nature of the data retained and the riskiness of this operation. It therefore held that the national legislation must provide for the data to be retained within the EU, and for the irreversible destruction of the data at the end of the data retention period [122]. Member States must also ensure that an independent authority reviews compliance with EU law, as such independent control of data protection compliance is an essential element of the right to data protection set out in Article 8(3) Charter. The Court emphasised the link between such independent supervision and the availability of a legal remedy for data subjects [123]. The Court therefore concluded that national legislation that did not comply with these conditions would be precluded pursuant to Article 15(1) as read in light of the Charter [125]. However, it was for the relevant national courts to examine whether such conditions were satisfied in the present case [124].

Finally, in relation to the UK Court of Appeal’s query regarding the relationship between the EU Charter rights to data protection and privacy and Article 8 ECHR, the Court held that the answer to this question would not affect the interpretation of the E-Privacy Directive and thus matter in these proceedings [131]. It recalled its settled case-law that the preliminary reference procedure serves the purpose of effectively resolving EU law disputes rather than providing advisory opinions or answering hypothetical questions [130]. This did not however prevent it from offering a sneak preview of its thinking on this matter. It emphasised that, while the EU has not acceded to the ECHR, the ECHR does not constitute a formally incorporated element of EU law. It did however note that Article 52(3) seeks to ensure consistency between the Charter and the ECHR without adversely affecting the autonomy of EU law. EU law is not therefore precluded from providing more extensive protection than the ECHR. The Court added that Article 8 of the Charter concerns a fundamental right which is distinct from that enshrined in Article 7 and which has no equivalent in the ECHR. Therefore, while the Court did not answer the question of which offered a wider scope of protection, it did confirm the distinctiveness of these two rights.

Comment

The Tele2 judgment represents a rupture with the past in one very significant way: the Court, for the first time, unequivocally states that blanket data retention measures are incompatible with EU law, read in light of the Charter. This radical finding is likely to receive a mixed reaction. For instance, in the UK some will lament that this judgment comes too late to have influenced the passage into law of the UK’s new data retention legislation, the Investigatory Powers Act, 2016. This legislation – which allows for bulk interception and hacking, amongst other things – should now be found to be incompatible with EU law, with all of the post-Brexit implications for ‘adequacy’ this may entail (also here). Others, such as the UK’s Independent Reviewer of Terrorism Legislation – David Anderson QC – have expressed regret. Anderson QC suggests that:

‘Precisely because suspects are often not known in advance, data retention which is not universal in its scope is bound to be less effective as a crime reduction measure.  In addition, a person whose data has not been retained cannot be exonerated by use of that data (e.g. by using location data to show that the person was elsewhere).’

The Advocate General (here; and commentary here) had similarly noted that data retention could help competent authorities ‘examine the past’ [AG, 178]. He had refused to declare general retention measures per se unlawful, preferring instead to assess the compatibility of data retention legislation against strict proportionality requirements [AG, 116]. His approach could therefore be said to be more nuanced and systematic than that of the Court. While examining proportionality stricto sensu he concluded that it would be for national courts to weigh the benefit of ‘examining the past’ with the potential it would provide for authorities to abuse this power by using metadata to catalogue entire populations, noting that evidence of abuses had been put before the Court [AG, 259-260]. This evidence before the Court might help to refute the critique that the Court should have focused on the actual harm of communications metadata retention ‘and sought to avoid assertions based on theory or informal predictions of popular feeling’.

Blanket retention was not the only important point on which the Court and the Advocate General departed. The Advocate General explicitly claimed that DRI set out mandatory requirements [AG, 221] while the Court did not. The Advocate General was also more stringent than the Court by requiring that data is retained in the relevant Member State [AG, 241] while the Court opted for the marginally more realistic requirement that data is retained in the EU. The Advocate General did not, however, consider Article 15(1) a derogation to the E-Privacy Directive (and therefore not a provision that required strict interpretation). The Court did not however engage with his elaborate reasoning on this point [AG, 106-115]. The Court did however confirm that competent national authorities must notify persons affected by data access as soon as such notification no longer jeopardises the investigation [121]. This significant procedural right is likely to play an important role in acting as a check on abusive access requests.

Perhaps the only fly in the ointment for the digital rights groups that intervened before the Court is the Court’s seemingly uncritical endorsement of geographic and group profiling. It does this when it emphasises that there should be relationship between the data retained and the threat, for instance when the data pertains to a ‘geographic area’ [108]. The ethical and social issues such profiling may entail would require further consideration. The Court appears to recognise this by suggesting that such profiling would need to be strictly evidence-based ([111]). Should generalised retention measures be replaced by ad hoc location-based retention measures, the legality of the latter would itself be the subject of much controversy.

Threat to Human Rights? The new e-Privacy Regulation and some thoughts on Tele2 and Watson

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Matthew White, Ph.D candidate, Sheffield Hallam University

Introduction

In a follow-up to last Christmas’s post, on 10 January 2017, the European Commission released the official version of the proposed Regulation on Privacy and Electronic Communications (e-Privacy Regs). Just as the last post concerned the particular aspect of data retention, this post will too.

Just as the former leaked version maintained, the proposal does not include any specific provisions in the field of data retention (para 1.3). This paragraph continues that Member States are free to keep or create national data retention laws, provided that they are ‘targeted’ and that they comply with European Union (EU) taking into account the case-law of the Court of Justice of the European Union (CJEU) and its interpretation of the e-Privacy Directive and the Charter of Fundamental Rights (CFR). Regarding the CJEU’s interpretation, the proposals specifically refers to Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others, and Joined Cases C-203/15 and C-698/15 Tele2 Sverige AB and Secretary of State for the Home Department. Aspects of the latter case is the focus of this post; the case itself has been thoroughly discussed by Professor Lorna Woods.

So, when is the essence of the right adversely affected?

Before discussing certain aspects of Tele2 and Watson, it is first important to draw attention to the provision which enables data retention in the new e-Privacy Regs. Article 11 allows the EU or its Member States to restrict the rights contained in Articles 5-8 (confidentiality of communications, permissions on processing, storage and erasure of electronic communications data and protection of information stored in and related to end-users’ terminal equipment). From Article 11, it is clear that this can include data retention obligations, so long as they respect the essence of the right and are necessary, appropriate and proportionate. In Tele2 and Watson the CJEU noted that any limitation of rights recognised by the CFR must respect the essence of said rights [94]. The CJEU accepted the Advocate General (AG)’s Opinion that data retention creates an equally serious interference as interception and that the risks associated with the access to communications maybe greater than access to the content of communications [99]. Yet the CJEU were reluctant to hold that data retention (and access to) adversely affects the essence of those rights [101]. This appears to highlight a problem in the CJEU’s reasoning, if the CJEU, like the AG accept that retention of and access to communications data is at least on par with access to the content, it makes little sense to then be reluctant to hold that data retention adversely affects the essence of those rights. The CJEU does so without making any distinction or reasoning for this differential treatment, and thus serves to highlight that perhaps the CJEU themselves do not fully respect the essence of those rights in the context of data retention.

The CJEU’s answer seems only limited catch all powers

The thrust of the CJEU’s judgment in Tele2 and Watson was that general and indiscriminate data retention obligations are prohibited at an EU level. But as I have highlighted previously, the CJEU’s answer was only in response to a very broad question from Sweden, which asked was:

[A] general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime…compatible with [EU law]?

Therefore, provided that national laws do not provide for the capturing of all data of all subscribers and users for all services in one fell swoop, this may be argued to be compatible with EU law. Both the e-Privacy Regs and the CJEU refer to ‘targeted’ retention [108, 113]. The CJEU gave an example of geographical criterions for retention in which David Anderson Q.C. asks whether the CJEU meant that ‘it could be acceptable to perform “general and indiscriminate retention” of data generated by persons living in a particular town, or housing estate, whereas it would not be acceptable to retain the data of persons living elsewhere? This is entirely possible given the reference from Sweden and the answer from the CJEU. In essence the CJEU have permitted discriminatory general and indiscriminate data retention which would in any event respect the essence of those rights.

Data retention is our cake, and only we can eat it

A final point on Tele2 and Watson was that the CJEU held that national laws on data retention are within the scope of EU law [81]. This by itself may not raise any concerns about protecting fundamental rights, but it is what the CJEU rules later on in the judgment that may be of concern. The CJEU held that the interpretation of the e-Privacy Directive (and therefore national Member State data retention laws) “must be undertaken solely in the light of the fundamental rights guaranteed by the Charter” [128]. The CJEU has seemingly given itself exclusive competence to determine how rights are best protected in the field of data retention. It is clear from the subsequent paragraph that the CJEU seeks to protect the autonomy of EU law above anything else, even fundamental rights [129]. This is despite the ECHR forming general principles of EU law and is mentioned in Article 15(1) (refers Article 6(3) of the Treaty of the European Union (TEU) specifically referring to the ECHR as such). Article 11 of the e-Privacy Regs refers to restrictions respecting the ‘essence of fundamental rights and freedoms’ and only time will tell whether the CJEU would interpret this as only referring to the CFR. Recital 27 of the e-Privacy Regs just like Recital 10 and 30 of the e-Privacy Directive refers to compliance with the ECHR, but as highlighted previously, Recitals are not legally binding.

Is the CJEU assuming too much?

A further concern, is that had the European Commission added general principles of EU law into Article 11, the CJEU may simply have ignored it, just as it has done in Tele2 and Watson. The problem with the CJEU’s approach is that it assumes that this judgment offers an adequate protection of human rights in this context. The ECHR has always been the minimum floor, but it appears the CJEU wants the CFR to be the ceiling whether it be national human rights protection, or protection guaranteed by the ECHR. What if that ceiling is lower than the floor? The AG in Tele2 and Watson stressed that the CFR must never be inferior to the ECHR [141]. But I have argued before, the EU jurisprudence on data retention is just that, offering inferior protection to the ECHR, and the qualification by the CJEU in Tele2 and Watson does not alter this. This position is strengthened by Judge Pinto De Albuquerque in his concurring opinion in the European Court of Human Rights judgment in Szabo. He believed that:

[M]andatory third-party data retention, whereby Governments require telephone companies and Internet service providers to store metadata about their customers’ communications and location for subsequent law-enforcement and intelligence agency access, appeared neither necessary nor proportionate [6].

Of course, Judge Pinto De Albuquerque could have been referring to the type of third party data retention which requires Internet Service Providers (ISPs) to intercept data from Over The Top (OTT) services, but his description is more in line with data retention of services’ own users and subscribers.

Conclusions

Although the CJEU has prohibited general indiscriminate data retention, the CJEU does not seem to have prevented targeted indiscriminate data retention. If the European Court of Human Rights (ECtHR) were to ever rule on data retention and follow its jurisprudence and the opinion of Judge Pinto De Albuquerque, this may put EU law in violation of the ECHR. This would ultimately put Member States in a damned if they do, damned if they do not situation, comply with the ECHR, and violate EU law autonomy; comply with EU law and violate the ECHR. When the minimum standards of human rights protection in this context are not adhered to, because of EU law, the ECHR should prevail. As anything less is a threat to human rights, meaning that the (even if well intentioned) CJEU can also be.

New ECJ ruling on data retention: Preservation of civil rights even in difficult times!

Original published here on 22. Dezember 2016

by

Translation – German version see here.

The European Court of Justice has made a Christmas present to more than 500 million EU citizens. With its new judgment on data retention (C-203/15 of 21 December 2016) – the highest court of the European Union stresses the importance of fundamental rights. All Member States are required to respect the rights represented in the European Charter of Fundamental Rights in their national legislation. The ECJ issued an important signal that can hardly be surmounted taking into account the current political discussions on internal and external threats and the strengthening of authoritarian political currents providing the public with simplistic answers to difficult questions.

The ECJ remains true to itself

The ruling of the European Court of Justice is in line with its judgment of 8 April 2014, by which the Court annulled Directive 2006/24/EC on the retention of data. The general obligation to retain traffic and location data required by this Directive was not limited to the absolutely necessary and thus disproportionate to the fundamental rights of respect for private life and the protection of personal data (Articles 7 and 8 of the European Charter of Fundamental Rights).

Despite the annulment of the Data Retention Directive by the ECJ, several Member States have continued or even broadened their practice of data retention. The latter took place in Great Britain, where shortly after the ECJ ruling – in July 2014 – a new legal basis for data retention was passed, which even went beyond the abolished EC directive. According to the British Parliament’s intention to implement the so-called „Investigatory Powers Act“, the major current commitments to compulsory data storage and the supervisory powers of the security authorities are to be extended in the short term and will include web services, in particular transactions on social networks. On November 29, 2016, the upper and lower house agreed on a corresponding legal text, which is to enter into force soon after its formal approval by the Queen. In other Member States, too, there are – differently broad-ranging – legal requirements which oblige providers of telecommunications and internet services to reserve traffic and location data whose conservation is not necessary for the provision or the billing of the respective service.

European Charter of Fundamental Rights binding for national legislature

A Swedish and a British court had asked the ECJ to clarify whether the respective national regulations on the retention of data corresponded to the European legal requirements.

In its new ruling the ECJ answered this question by stating that national regulations which provide a general and indiscriminate storage of data are not in line with the EU law. A national regulation providing for the storage of traffic and location data, is to be regarded as serious interference in fundamental rights. Member States must not maintain or re-adopt rules which are based on, or even go beyond, an EU act which has been annulled on grounds of its fundamental illegality.

The provisions of EU law bind the national legislature. The EU Directive 2002/58/EC on data protection in electronic communications (the ePrivacy Directive) has to be interpreted in the light of the Charter of Fundamental Rights. Exceptions to the protection of personal data should be limited to the absolutely necessary. This applies not only to the rules on data retention, but also to the access of authorities to the stored data. A national provision providing for general and indiscriminate data retention which does not require a link between the data for which it is originally intended to be stored and a threat to public security, and in particular is not limiting the data on a period and / or a geographical area and / or of a group of persons which could be involved in a serious criminal act, transcends the limits of the absolutely necessary and can not be regarded as justified in a democratic society. Laws of Member States that do not meet these requirements must be abolished or amended accordingly.

With regard to the contested British and Swedish laws, the competent national courts which had appealed to the ECJ are now required to enforce the ECJ ruling in substance. However, even the parliaments and governments of the Member States are, too, responsible for reviewing and, where appropriate, correcting the relevant provisions of national law.

What happens to German data retention?

The implications of the ECJ ruling for the German data retention recently reintroduced must also be urgently examined. The retention obligations of the new German Data Retention Act remain behind the predecessor regulation, which was repealed by the Federal Constitutional Court in 2010. However, it is highly doubtful whether the provisions of the ECJ will be fulfilled by the new data retention act, since it obliges the telecommunications providers to store the data without any material restriction on a specific area or a particular risk situation.

The fact that the Federal Government or the parliamentary fractions backing them will now carry out this examination in an objective manner appears to be highly unlikely in the light of the additional powers which they have recently decided to hand over to the security authorities. In the end, the Federal Constitutional Court will probably have to ensure clarity again.

Peter Schaar (21 December 2016)

Data retention and national law: the ECJ ruling in Joined Cases C-203/15 and C-698/15 Tele2 and Watson (Grand Chamber)

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Lorna Woods, Professor of Internet Law, University of Essex

Introduction

Today’s judgment in these important cases concerns the acceptability from a human rights perspective of national data retention legislation maintained even after the striking down of the Data Retention Directive in Digital Rights Ireland (Case C-293/12 and 594/12) (“DRI”) for being a disproportionate interference with the rights contained in Articles 7 and 8 EU Charter of Fundamental Rights (EUCFR).  While situated in the context of the Privacy and Electronic Communications Directive (Directive 2002/58), the judgment sets down principles regarding the interpretation of Articles 7 and 8 EUCFR which will be applicable generally within the scope of EU law. It also has possible implications for the UK’s post-Brexit relationship with the EU.

Background and Facts

The Privacy and Electronic Communications Directive requires the confidentiality of communications, including the data about communications to be ensured through national law. As an exception it permits, under Article 15, Member States to take measures for certain public interest objectives such as the fight against terrorism and crime, which include requiring public electronic communications service providers to retain data about communications activity. Member States took very different approaches, which led to the enactment of the Data Retention Directive (Directive 2006/24) within the space for Member State action envisaged by Article 15.  With that directive struck down, Article 15 remained the governing provision for exceptions to communications confidentiality within the field harmonised by the Privacy and Electronic Communications Directive.  This left questions as to what action in respect of requiring the retention of data could be permissible under Article 15, as understood in the light of the EUCFR.

The cases in today’s judgment derive from two separate national regimes. The first, concerning Tele2, arose when – following the DRI judgment – Tele2 proposed to stop retaining the data specified under Swedish implementing legislation in relation to the Data Retention Directive. The second arose from a challenge to the Data Retention and Investigatory Powers Act 2014 (DRIPA) which had been enacted to provide a legal basis in the UK for data retention when the domestic regime implementing the Data Retention Directive fell as a consequence of the invalidity of that directive.  Both sets of questions referred essentially asked about the impact of the DRI reasoning on national regimes, and whether Articles 7 and 8 EUCFR constrained the States’ regimes.

The Advocate General handed down an opinion in July (noted here) in which he opined that while mass retention of data may be possible, it would only be so when adequate safeguards were in place.  In both instances, the conditions – in particular those identified in DRI – were not satisfied.

Judgment

Scope of EU Law

A preliminary question is whether the data retention, or the access of such data by police and security authorities, falls within EU law.  While the Privacy and Electronic Communications Directive regulated the behaviour of communications providers generally, Article 1(3) of that Directive specifies that matters covered by Titles V and VI of the TEU at that time (e.g. public security, defence, State security) fall outside the scope of the directive, which the Court described as relating to “activities of the State” . Further Article 15(1) permits the State to take some measures resulting in the infringement of the principle of confidentiality found in Art 5(1) which again “concern activities characteristic of States or State authorities, and are unrelated to fields in which individuals are active” [para 72]. While there seems to be overlap between Article 1(3) and Article 15(1), this does not mean that matters permitted on the basis of Article 15(1) fall outside the scope of the directive as “otherwise that provision would be deprived of any purpose” [para 73].

In the course of submissions to the Court, a distinction was made between the retention of data (by the communications providers) and access to the data (by police and security services).  Accepting this distinction would allow a line to be drawn between the two, with retention as an activity of the commercial operator regulated by the Privacy and Electronic Communications Directive within its scope and the access, as an activity of the State lying outside it. The Court rejected this analysis and held that both retention and access lay within the field of the Privacy and Electronic Communications Directive [para 76]. It argued that Article 5(1) guarantees confidentiality of communications from the activities of third parties whether they be private actors or state authorities. Moreover, the effect of the national legislation is to require the communications providers to give access to the state authorities which in itself is an act of processing regulated by the Privacy and Electronic Communications Directive [para 78]. The Court also noted that the sole purpose of the retention is to be able to give such access.

Interpretation of Article 15(1)

The Court noted that the aim of the Privacy and Electronic Communications Directive is to ensure a high level of protection for data protection and privacy. Article 5(1) established the principle of confidentiality and that “as a general rule, any person other than the user is prohibited from storing, without the consent of the users concerned, the traffic data”, subject only to technical necessity and the terms of Article 15(1) (citing Promusicae) [para 85].  This requirement of confidentiality is backed up by the obligations in Article 6 and 9 specifically dealing with restrictions on the use of traffic and location data. Moreover, Recital 30 points to the need for data minimisation in this regard [para 87]. So, while Article 15(1) permits exceptions, they must be interpreted strictly so that the exception does not displace the rule; otherwise the rule would be “rendered largely meaningless” [para 89].

As a result of this general orientation, the Court held that Member States may only adopt measures for the purposes listed in the first sentence of Article 15(1) and those measures must comply with the requirements of the EUCFR.  The Court, citing DRI (at paras 25 and 70), noted that in addition to Articles 7 and 8 EUCFR, Article 11 EUCFR – protecting freedom of expression – was also in issue. The Court noted the need for such measures to be necessary and proportionate and highlighted that Article 15 provided further detail in the context of communications whilst Recital 11 to the Privacy and Electronic Communications Directive requires measures to be “strictly proportionate” [para 95].

The Court then considered these principles in the light of the reference in Tele2 at paras 97 et seq of its judgment. Approving expressly the approach of the Advocate General on this point, it  underlined that communications “data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained” and that such data is no less sensitive that content [para 99]. The interference in the view of the Court was serious and far-reaching in relation to Articles 7, 8 and 11.  While Article 15 identifies combatting crime as a legitimate objective, the Court – citing DRI – limited this so that only the fight against serious crime could be capable of justifying such intrusion.  Even the fight against terrorism “cannot in itself justify that national legislation providing for the general and indiscriminate retention of all traffic and location data should be considered necessary” [para 103].  The Court stressed that the regime provides for “no differentiation, limitation or exception according to objectives pursued” [para 105].  The Court did confirm that some measures would be permissible:

… Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, does not prevent a Member State from adopting legislation permitting, as a preventive measure, the targeted retention of traffic and location data, for the purpose of fighting serious crime, provided that the retention of data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary. [para 108]

It then set down some relevant conditions:

Clear and precise rules “governing the scope and application of such a data retention measure and imposing minimum safeguards, so that the persons whose data has been retained have sufficient guarantees of the effective protection of their personal data against the risk of misuse” [para 109].

while “conditions may vary according to the nature of the measures taken for the purposes of prevention, investigation, detection and prosecution of serious crime, the retention of data must continue nonetheless to meet objective criteria, that establish a connection between the data to be retained and the objective pursued” [110].

The Court then emphasised that there should be objective evidence supporting the public whose data is to be collected on the basis that it is likely to reveal a link, even an indirect one, with serious criminal offences, and thereby contribute in one way or another to fighting serious crime or to preventing a serious risk to public security. The Court accepted that geographical factors could be one such ground, on the basis that “that there exists, in one or more geographical areas, a high risk of preparation for or commission of such offences” [para 111].

Conversely,

…Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication [para 112].

Acceptability of legislation where (1) the measure is not limited to serious crime; (2) where there is no prior review; and (3) where there is no requirement that the data stays in the EU.

This next section deals with the first question referred in the Watson case, as well as the Tele 2 reference.

As regards the first point, the answer following the Court’s approach at paragraphs 90 and 102 is clear: only measures justified by reference to serious crime would be justifiable.  As regards the second element, the Court noted that it is for national law to law conditions of access so as to ensure that the measure does not exceed what is strictly necessary.  The conditions must be clear and legally binding. The Court argued that since general access could not be considered strictly necessary, national legislation must set out by reference to objective criteria the circumstances in which access would be permissible.  Referring to the European Court of Human Rights (ECtHR) judgment in Zakharov, the Court specified:

access can, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime [para 119].

It then distinguished the general fight against crime from the fight against terrorism to suggest that in the latter case:

access to the data of other persons might also be granted where there is objective evidence from which it can be deduced that that data might, in a specific case, make an effective contribution to combating such activities [para 119].

The conditions set down must be respected. The Court therefore held that, save in cases of genuine emergency, prior review by an independent body must be carried out on the basis of a reasoned request by the investigating bodies. In making this point, the Court referred to the ECtHR judgment in Szabó and Vissy v. Hungary, as well as its own previous ruling in DRI. Furthermore, once there was no danger to the investigation by so doing, individuals affected should be notified, so as to those affected people the possibility to exercise their right to a remedy as specified in Article 15(2) read with Article 22 of the Data Protection Directive (Directive 95/46).

Article 15(1) permits derogation only in relation to specified provisions in the directive; it does not permit derogation with regard to the security obligations contained in Article 4(1) and 4(1a). the Court noted the quantity of data as well as its sensitivity to suggest that a high level of security measures would be required on the part of the electronic communications providers. Following this, the Court then stated:

…, the national legislation must make provision for the data to be retained within the European Union and for the irreversible destruction of the data at the end of the data retention period (see, by analogy, in relation to Directive 2006/24, the Digital Rights judgment, paragraphs 66 to 68) [para 122].

The Court noted that as a separate obligation from the approval of access to data, that States should ensure that independent review of compliance with the required regulatory framework was carried out by an independent body. In the view of the Court, this followed from Article 8(3) EUCFR. This is an essential element of individuals’ ability to make claims in respect of infringements of their data protection rights, as noted previously in DRI and Schrems.

The Court then summarised the outcome of this reasoning, that Article 15 and the EUCFR:

must be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. [para 125]

Relationship between the EUCFR, EU law and the ECHR

The English Court of Appeal had referred a question about the impact of the ECHR on the scope of the EUCFR in the light of Article 52 EUCFR. While the Court declared the question inadmissible, it –like the Advocate General – took the time to point out that the ECHR is not part of EU law, so the key issue is the scope of the EUCFR; and in any event Article 52(3) does not preclude Union law from providing protection that is more extensive than the ECHR. As a further point, the Court added that Article 8 EUCFR, which provides a separate right to data protection, does not have an exact equivalent in the ECHR and that there is therefore a difference between the two regimes.

Comment

Given the trend of recent case law, the outcome in this case is not surprising.  There are some points that are worth emphasising.

The first relates to the scope of EU law, which is a threshold barrier to any claim based on the EUCFR.  The Advocate General seemed prepared to accept a distinction between the retention of data and the access thereto (although conditions relating to the latter could bear on the proportionality of the former).  The Court took a different approach and held that the access also fell within the scope of the Directive/EU law, because the national regime imposed an obligation on the communications service provider to provide access to the relevant authorities. Given this was an obligation on the service provider, it fell within the regulatory schema.  This approach thus avoids the slightly unconvincing reasoning which the Advocate General adopted.  It also possibly enlarges the scope of EU law.

In general terms, the Court’s reasoning looks at certain provisions of the Privacy and Electronic Communications Directive.  While the reasoning is set in that context, it does not mean that the Court’s interpretation of the requirements deriving from the EUCFR is limited only to this set of surveillance measures.  The rules of interpretation of particularly Articles 7 and 8 could apply more generally – perhaps to PNR data (another form of mass surveillance) – and beyond.  It is also worth noting that according to a leaked Commission document, it is proposed to extend the scope of the Privacy and Electronic Communications Directive to other communications service providers not currently regulated by the directive, but who may be subject to some data retention requirements already.

Whilst the Court makes the point that Articles 7 and 8 EUCFR are separate and different, and that data retention implicates also Article 11 EUCFR, in its analysis of the impact of national measures providing for retention it does not deal with Articles 7 and 8 separately (contrast DRI where a limited consideration was given to this). Having flagged Article 11 EUCFR, it takes that analysis no further.  This is the leaves questions as to the scope of the rights, and particularly how Article 11 issues play out.

Note that the Court does not state that data retention itself is impermissible; indeed, it specifies circumstances when data retention would be acceptable. It challenges the compatibility of mass data retention with Articles 7 and 8 EUCFR, however, even in the context of the fight against terrorism.  In this, it is arguable that the Court has taken a tougher stance than its Advocate General on this point of principle.  In this we see a mirror of the approach in DRI, when the Court took a different approach to its Advocate General.  In that case too, the Advocate General focussed on safeguards and the quality of law, as has the Advocate General here. For the Court here, differentiation – between people and between types of offences and threats – based on objective, evidenced grounds is central to showing that national measures are proportionate and no more than – in the terms of the directive – strictly necessary. This seems to go close to disagreeing with the Opinion of the Advocate General that in DRI, the Court ‘did not, however, hold that that absence of differentiation meant that such obligations, in themselves, went beyond what was strictly necessary’ (Opinion, para 199). The Advocate General used this point to argue that DRI did not suggest that mass surveillance was per se unlawful (see Opinion, para 205). Certainly, in neither case did the Court expressly hold that mass surveillance was per so unlawful, so the question still remains. What is clear, however, is that the Court supports the retention of data following justified suspicion – even perhaps generalised suspicion – rather than using the analysis of retained data to justify suspicion.

In its reasoning, the Court did not –unlike the Advocate General – specifically make a ruling on whether or not the safeguards set down in DRI, paras 60-68, should be seen as mandatory – in effect creating a 6 point check list. Nonetheless, it repeatedly cited DRI approvingly. Within this framework, it highlighted specific aspects – such as the need for prior approval; the need for security and control over data; a prohibition on transferring data outside the EU; the need for subjects to be able to exercise their right to a remedy. Some of these points will be difficult to reconcile with the current regime in the United Kingdom regarding communications data.

It did not, however, touch on acceptable periods for retention (even though it – like its Advocate General – referred to Zakharov). More generally, the Court’s analysis – by comparison with that of the Advocate General – was less detailed and structured, particularly about the meaning of necessity and proportionality. It did not directly address the points the Advocate General made about lawfulness, with specific reference to reliance on codes (an essential feature of the UK arrangements); it did in passing note that the conditions for access to data should be binding within the domestic legal system. Is this implicit agreement with the Advocate General on this point? It certainly agreed with him that the seriousness of the interference meant that data retention of communications data should be restricted to ‘serious crime’ and not just any crime.

One final issue relates to the judicial relationship between Strasbourg and Luxembourg.  Despite emphasising that the ECHR is not part of EU law, the Court relies on two recent cases from the ECtHR, perhaps seeking to emphasis the consistency in this area between the two courts – or perhaps seeking to put pressure on Strasbourg to hold the line as it faces a number of state surveillance cases on its own docket, many against the UK. The position of Strasbourg is significant for the UK. While many assume that the UK will maintain the GDPR after Brexit in the interests of ensuring equivalence, it could be that the EUCFR will no longer be applicable in the UK post-Brexit. For UK citizens, the ECHR then is the only route to challenge state intrusion into privacy. For those in the EU, data transfers to the UK post-Brexit could be challenged on the basis that the UK’s law is not sufficiently adequate compared to EU standards. Today’s ruling – and the UK’s response to it, if any – could be a significant element in arguing that issue.