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Legal assessment of Communications Data Retention - A violation of the European Convention of Human Rights

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This Memorandum was commissioned to provide an indication of the legality of measures being undertaken throughout the EU to require the retention of communications data. The advice relates to the retention of data in a mandatory regime. The document is intended as a framework for the development of analyses more specific to national legal environments.

The indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behavior to avoid unwanted intrusions. Moreover, the data retention requirement would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society.