Rejection of indiscriminate data retention: ECJ Advocate General delivers opinion on German data retention law
Today, Manuel Campos Sánchez-Bordona, Advocate General of the European Court of Justice (ECJ), presented his opinion in the legal dispute between SpaceNet AG and the Federal Republic of Germany on the German law on general and indiscriminate retention of all traffic, location and internet access data. In his opinion, he states that the general and indiscriminate retention of traffic and location data is permissible only exceptionally in the event of a threat to national security, and under no circumstances permanently as provided for in the German law on data retention.
MEP, civil liberties activist and lawyer Dr Patrick Breyer (Pirate Party), who filed a constitutional complaint against the data retention law, comments:
“The Advocate General’s opinion confirms that the German data retention law grossly violates fundamental rights. The blanket collection of metadata leaves us, and our personal lives exposed. Indiscriminately collecting sensitive information about the social and business interactions, movements and the private lives (e.g. contacts with physicians, lawyers, workers councils, psychologists, helplines, etc.) of millions of citizens that are not suspected of any wrongdoing is a radical and unacceptable measure of mass surveillance.
Data retention is the first surveillance law directed against the entire population. This puts us on a slippery slope. The distinction between content and communications data has been blurred. We know today, according to the current state of research, that metadata allows for conclusions to be drawn that are at least as profound as the content.
The clear words of the Advocate General are a call to the leaders of the German coalition parties to finally bury data retention for good!
Even if IP data retention were legally feasible, all internet users must not be placed under general suspicion and anonymity on the Internet must be protected. A general and indiscriminate retention of our identity on the internet enables the creation of comprehensive personality and movement profiles of practically every citizen to an even greater extent than telephone connection data. Incidentally, there is no proof that internet data retention makes any statistically significant significant contribution at all to the number of crimes solved: when IP data retention was mandated in Germany in 2009, there was no increase in the crime clearance rate. “
Background
On 13 September, the ECJ hearing in the case of internet provider SpaceNet took place in order to clarify the question of whether Germany’s suspicionless blanket storage obligation of traffic and location data is compatible with Union law – including the EU Charter of Fundamental Rights. The Munich-based SpaceNet AG has been suing against the controversial surveillance instrument since April 2016. SpaceNet AG was most recently successful before the Cologne Administrative Court (VG), which ruled on 20 April 2018 that data retention without due cause violates EU law. The Federal Administrative Court disagreed. Now the European Court of Justice is to decide.
In July 2020, a discussion paper was leaked, showing that the European Commission is working on scenarios for the Europe-wide reintroduction of suspicionless and location-based data retention of connection, movement and internet connection data. For the first time, messenger and video conferencing services could also have to identify users and retain their contacts.
In November 2016, Digitalcourage, AK Vorrat and 23 affected prominent associations, female artists, journalists, lawyers and doctors filed a constitutional complaint against data retention in Germany. Patrick Breyer is one of the complainants. The ruling by the German Constitutional Court is still pending.
