Judgment of the Court of the European Union (Grand chamber)

Retention of Telecommunications Data

Holly RaicheDirector, Internet Society of Australia

EUROPEAN PROTECTION OF TELECOMMUICATIONS DATA

Joint Request by Digital Rights Ireland et all and the Constitutional Court of the Province of Carinthia, Austria et al on the validity of the EU Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/ECJudgment handed down 8 April 2014

EUROPEAN PROTECTION OF TELECOMMUICATIONS DATA

Directive 2006/24 Article 1 This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.

EUROPEAN PROTECTION OF TELECOMMUICATIONS DATA

The Verfassungsgerichtshof wonders, in particular, whether Directive 2006/24 is compatible with the Charter in so far as it allows the storing of many types of data in relation to an unlimited number of persons for a long time. The Verfassungsgerichtshof takes the view that the retention of data affects almost exclusively persons whose conduct in no way justifies the retention of data relating to them. Those persons are exposed to a greater risk that authorities will investigate the data relating to them, become acquainted with the content of those data, find out about their private lives and use those data for multiple purposes, having regard in particular to the unquantifiable number of persons having access to the data for a minimum period of six months. According to the referring court, there are doubts as to whether that directive is able to achieve the objectives which it pursues and as to the proportionality of the interference with the fundamental rights concerned.

EUROPEAN PROTECTION OF TELECOMMUICATIONS DATA

Data That must be retained:• data necessary to trace and identify the source of a

communication:– concerning fixed network telephony and mobile telephony:– concerning Internet access, Internet e-mail and Internet

telephony:

• data necessary to identify the destination of a

communication:– concerning fixed network telephony and mobile telephony:– concerning Internet e-mail and Internet telephony:

EUROPEAN PROTECTION OF TELECOMMUICATIONS DATA

• data necessary to identify the date, time and duration of a communication:– concerning fixed network telephony and mobile telephony, the date

and time of the start and end of the communication;– concerning Internet access, Internet e-mail and Internet telephony:

• data necessary to identify the type of communication:– concerning fixed network telephony and mobile telephony: the

telephone service used;– concerning Internet e-mail and Internet telephony: the Internet

service used;•

EUROPEAN PROTECTION OF TELECOMMUICATIONS DATA

• data necessary to identify users’ communication equipment or what purports to be their equipment:– concerning fixed network telephony, the calling and called telephone

numbers;– concerning mobile telephony:– concerning Internet access, Internet e-mail and Internet telephony:

• data necessary to identify the location of mobile communication

equipment:– the location label (Cell ID) at the start of the communication;– data identifying the geographic location of cells by reference to their

location labels (Cell ID) during the period for which communications data are retained.

EUROPEAN PROTECTION OF TELECOMMUNICATIONS DATA

THANK YOU