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Privacy

The EU's ongoing battle over data retention

The European Court of Justice rules that citizens' telecommunications data can be retained only in cases of severe necessity, overturning EU guidelines. The issue has proven highly controversial in Germany.

The European Court of Justice ruled Tuesday (08.04.2014) that current EU guidelines on the mass retention of citizens' telecommunications data are not in accordance with the basic rights to which Europeans are entitled. The judges described the directives, which stem from the European Commission, as a "particularly serious" infringement of the "respect for private life and to the protection of personal data."

Strong words flew when the same issue was debated in the German parliament a few weeks ago. One member of the Greens described the suggestion of keeping records of everyone's connection data as "disproportionate and unnecessary." Another from the Left party referred to it as "total recording of human communication" with the aim of creating a "transparent person." It was the "worst possible disaster for free communication as a foundation of the democratic rule of law."

Germany has seen few domestic issues raise passions as much as the issue of whether, for how long and by whom the data in question may be retained. In 2005, the European Commission called on states to ensure that providers kept information about the telephone and e-mail connections of their private customers for at least six months and no more than two years. The information was to include time, duration and participants in the communication, but not content. That proposal had met with increasing criticism across Europe.

Demonstration Liberty instead of fear in Berlin for civic rights and data privacy (photo: Rainer Jensen/dpa)

The issue has led to protests in Germany

Courts united in skepticism

In 2010, the German constitutional court ruled similarly to the European Court now. The German judges threw out a law from 2008 that foresaw a six-month retention period. Since then, there has been no regulation as to how long providers have to keep the data. But Germany is not the only country in which the proposals have caused problems. In the Czech Republic and Romania, for example, similar laws have also been found unconstitutional.

The judges at the court (photo: Thomas Frey dpa/lrs)

The European Court of Justice rejected the European Commission's directives

The German Christian Democrats CDU and CSU - the larger group in the current government coalition - call the current situation unacceptable, and they have pushed their junior partners, the Social Democrats, to sign up to a coalition agreement in which they agree to pass a new law as quickly as possible. But the Social Democrats seem less taken with the idea. Social Democrat Justice Minister Heiko Maas has not yet submitted a draft law, saying he would wait until the European judges issue a ruling.

Tuesday's verdict should spur on debate in the German coalition as to how to adhere to the Commission's proposals in light of the court's restrictions.

Back to the constitutional court?

Hans-Peter Uhl of CDU's sister party CSU considers a new law essential. He told DW that he could accept it if some details were changed, such as how long the data could be kept, who would have access to them and whether those affected would have to be informed, "but it would be totally wrong to do without it entirely." He's confident Merkel's conservatives will soon reach agreement with the Social Democrats.

Georg Jochum, an expert on European law at the University of Friedrichshafen, is sure it will be possible to find a regulation which will stand up before the constitutional court. For him, the main issue is how the data is handled: "In other words, can the Federal Criminal Agency simply look at whatever is stored, or must a judge decide? How concretely will I, as someone affected, be able to check how my data is being used? Can I claim damages if there is abuse? Those are all questions which will have to be taken into account when the law is made."

Hans-Peter Uhl (photo: Britta Pedersen/dpa)

Uhl believes a modified law allowing some data retention is essential

Jochum also says that the rules have to be Europe-wide, since terrorists and organized crime tend to work across borders. At the same time, there will have to be account taken of the different cultural and legal traditions in each country: "It makes a difference whether you have a culture like the German one where there are high legal standards and an independent judiciary, or whether you have a situation as in Hungary where that doesn't altogether apply."

The European Court will probably give the states a generous deadline to bring their national laws into line. That will allow plenty of time for German lawmakers to produce a new piece of legislation - and plenty of time for more debate on the matter.

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