Do you remember Morpheus saying “Wake up Neo… The Matrix has you!”?
Do you remember Agent Smith implanting an electronic tracking bug in Neo’s body?
I bet you do, because the image transported by this film does not appear that fictional anymore.
It may be just an arm’s length away.
Yes, I am talking about the retention of your communication traffic data. By “you” I mean all of you who live under the jurisdiction of a member state of the European Union. Any member state? Hmm, well, possibly not, but let me first explain
What is data retention and its purpose?
Data retention in the sense of the Directive 2006/24/EC provides for the storage data arising out of telephone calls made and received, emails sent and received and websites visited. Since location data counts to traffic data, it is collected too.
The introduction of data retention has always been justified with combating terrorism and serious crimes, but it aims to fight file-sharing users instead.
Owing to its controversy, legislation produced by transposition of the data retention Directive has been contested in some EU member states. While Ireland challenged Directive’s compatibility with formalities under the then current EC Treaty, the constitutional courts of Romania and Germany were asked to deal with data retention’s compatibility with fundamental human rights. As a consequence, the respective provisions got abrogated, but not annulled.
Data retention gains territory
Until recently, Austria managed to postpone the transposition of the Directive 2006/24/EC into its national law. Well, the ostensible resistance grounded on discrepancies between the two coalition forming parties rather than on human rights deliberations.
However, some weeks ago the farce went to an end and a bill amendment to the telecommunications act was nodded through the council of ministers prior to its submittal to the parliament. Reportedly, the bill is being heavily discussed among the members of the parliament justice committee. The result will be, despite all assurances, the total control of communication.
Now that Austria will no longer be a safe harbour in terms of privacy, are there any other member states that still have not implemented the data retention directive?
Let us have a look at the map of Europe…
Is someone missing?
Yes, there is!
The land of milk and honey
Can you imagine: the Swedes usually known for their discipline and law-abiding behaviour are now obstructing the implementation of Directive 2006/26/EC.
It seems that an arrangement among the Left Party, the Green Party and the Swedish Democrats managed to apply a procedural loophole in order to delay the transposition for at least a year.
What does it mean?
As I previously mentioned, the data retention directive has been referred to a judicial review a few times already. These reviews’ action items towards legislation always read the same: improve!
In this respect, it is likely that the Court of Justice of the European Union delivers a judgment dealing with data retention’s compatibility with fundamental human rights under the acquis.
The good news at the end
I still have hope that this madness will come to an end. Not only because hope springs eternal, but because anyone can make an effort and engage in lawfully fighting data retention.
At least anyone who cares about fundamental human rights.
And if Sweden should fail, then it could be us as individuals who form Europe’s last stand against data retention!
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