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Chapter: 

How Article 8 is engaged

The European Court of Human Rights (ECtHR) held in Amann v Switzerland (2000) that "the storage by a public authority of information relating to an individual's private life amounts to interference within the meaning of Article 8" and that the "subsequent use of the stored information has no bearing on that finding". In Amann, the European Court of Human Rights found Article 8 applicable when state security services kept records indicating that the applicant was a contact of the Soviet Embassy, after intercepting a telephone call from the Embassy to the applicant. The Court noted that storage of the information on an index card alone was sufficient to constitute an interference in private life. Similarly, in Rotaru v Romania (2000) the Court found that the storing by the security services of information about the applicant’s activities while a university student constituted an interference with his Article 8 rights. Collecting and storing private information is therefore an activity that will always engage Article 8; whether or not the state ultimately uses that information against an individual is irrelevant. 

The European Court of Human Rights has repeatedly found the recording of numbers dialed from conventional telephones to constitute an interference with private life. In an earlier technological era, the Court pointed out that information about who called who (traffic data) was an important element of telephone communications information. Indeed, the information at issue in Amann - that the applicant was a contact of the Soviet Embassy - could have been inferred just as easily from traffic data as it was from interception of the content of the communication. Recent technological advances have blurred the distinction between traffic data and content still further. Mobile phone companies are now able to record the exact location from which a call is made, internet service providers (ISPs) can track every web page visited by their users, and the address lines of e-mails provide a wealth of data about the circles of people with which an individual interacts. All of this information, and more, may be stored under the terms of the draft Bill.

ECtHR decisions over the years have acknowledged that Member States must have the capabilities to effectively counter threats such as espionage and terrorism, and that this will sometimes include undertaking secret surveillance. However, the Court has also held that the state "may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate" due to the danger of such laws undermining or even destroying democracy in the name of defending it, see Klass.