THE HAGUE. On March 11, 2015, the preliminary injunction judge declared the Telecommunications Data Retention Act inoperative. This will end the requirement for telephone and Internet service providers to store users’ traffic and location data for six to 12 months. The law infringed upon the right to private life and the right to protection of personal data without limitation and safeguards.
PILP was a co-plaintiff in this case against the state because the Telecommunications Data Retention Act has far-reaching implications for the human rights of everyone who uses electronic means of communication, including citizens who are not suspected of any criminal behavior. Experts from PILP and NJCM contributed to the plaintiffs’ human rights arguments.
In addition, there was already a scathing European ruling on the EU Data Retention Directive, on which Dutch law is based, to which the Dutch state paid little heed. This too – the choice to allow a far-reaching violation of human rights to continue without safeguards – could not pass muster, according to PILP and NJCM.
The Telecommunications Data Retention Act (2009) was based on the 2006 EU Data Retention Directive. It came in response to the terrorist attacks in London and Madrid in 2004 and 2005 and was intended to ensure that certain data would be available to combat serious crime. On April 8, 2014, the EU Court of Justice invalidated the Data Retention Directive in its entirety and retroactively. However, the Dutch government continued to apply the law unabated.
In its judgment of March 11, 2015, the interim relief judge found that the Telecommunications Data Retention Act, in its current form, infringes on the right to respect for private, family, home and communication life and the right to protection of personal data (Articles 7 and 8 of the EU Charter of Fundamental Rights), which is not limited to what is “strictly necessary” to combat (only) serious crime.
To justify interference with these fundamental rights, the legislation should contain objective criteria that limit the competent national authorities’ access to the data and its subsequent use. This is not the case under the Telecommunications Data Retention Act, according to the preliminary injunction judge. This admittedly limits the use of the data to the investigation and prosecution of offenses for which pre-trial detention is authorized or terrorist crimes. However, this category includes offenses that are not sufficiently serious to warrant interference, such as bicycle theft. Nor does the law provide safeguards to effectively limit access to the data to what is “strictly necessary.” This is all the more compelling, according to the preliminary injunction judge, since access to the retained data is not subject to prior review by a judicial or independent administrative authority. The prosecution cannot be considered such an independent administrative agency, the preliminary injunction judge said.
Click HERE for the full text of the March 11, 2015 ruling.
Click HERE for Privacy First’s press release, March 11, 2015.
Click HERE for the full EU Court of Justice ruling of April 8, 2014.
