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Indiscriminate retention of data is not necessary in a democratic society

Blanket data retention is the antithesis of a regime designed to achieve the minimum necessary impairment of rights. In order to retain information bearing on the very small fraction of the population involved in criminal activity or threatening national security, mandatory data retention gives rise to an indefinite and ongoing interference with the privacy rights of every individual who uses European-based communications systems. Such a broad interference with an established right exceeds the bounds of permissible interferences as set forth in the European Convention and enunciated by the European Court of Human Rights.

Article 8(2)’s limited exception to the right to respect of private life requires that any interference be no greater than is necessary in a democratic society. This condition is subject to the same narrow reading that the European Court on Human Rights applies to the rest of Article 8(2). The Court has explained the principle underlying this requirement in terms of the need for any interference in Article 8 rights to correspond to a pressing social need and to be proportionate to the legitimate aim pursued. Mandatory data retention laws fail on this score as well. The distinguishing feature of a blanket data retention requirement is the absence of any reasonable relationship between the intrusion on individual privacy rights and the law enforcement objectives served.

For a measure impairing individual rights to be proportional, the State must put in place safeguards ensuring that interference with those rights is no greater than necessary. In Foxley v. United Kingdom, for example, the Court found that interception of a bankrupt’s mail violated Article 8 because of the absence of adequate and effective safeguards ensuring minimum impairment of the right to respect for his correspondence.

European legislators can make no showing that such large-scale impairment of individual rights arising from mandatory data retention laws is the only feasible option for combating crime or protecting national security. Indeed, international practice points strongly in the opposite direction. For example, in the U.S., the authorities have much more circumscribed authority to require retention of traffic data. And, as recently as 2001, all 15 Member States of the European Union signed a Council of Europe Convention providing for data to be retained on a selective basis, where the authorities have reason to believe that the information may be relevant to a criminal investigation. Law enforcement requirements can be met without widespread interference with individual rights. In short, blanket data retention is unnecessary. The interference in individual privacy rights required by mandatory data retention laws cannot therefore be necessary in a democratic society.

Proportionality also requires that interferences in private life take account of the specially protected nature of certain communications. Thus the Court has on occasion analysed the impact of State surveillance on the attorney-client relationship as part of its inquiry into whether a given regulation was necessary in a democratic society. In finding that the interception of a bankrupt’s mail was not necessary in a democratic society, the Foxley decision, for example, accorded particular weight to the authorities’ failure to distinguish between privileged communications from the applicant’s lawyer and other items. As already noted, blanket data retention falls short on this measure too. The Framework Decision, for instance, fails to take even the minimum steps necessary to ensure respect for attorney-client and other specially-protected communications.