A Threat to Human Rights? The new e-Privacy Regulation and some thoughts on Tele2 and Watson

Matthew White, Ph.D candidate, Sheffield Hallam University

Introduction

In a follow-up to last Christmas’s post, on 10 January 2017, the European Commission released the official version of the proposed Regulation on Privacy and Electronic Communications (e-Privacy Regs). Just as the last post concerned the particular aspect of data retention, this post will too.

Just as the former leaked version maintained, the proposal does not include any specific provisions in the field of data retention (para 1.3). This paragraph continues that Member States are free to keep or create national data retention laws, provided that they are ‘targeted’ and that they comply with European Union (EU) taking into account the case-law of the Court of Justice of the European Union (CJEU) and its interpretation of the e-Privacy Directive and the Charter of Fundamental Rights (CFR). Regarding the CJEU’s interpretation, the proposals specifically refers to Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others, and Joined Cases C-203/15 and C-698/15 Tele2 Sverige AB and Secretary of State for the Home Department. Aspects of the latter case is the focus of this post; the case itself has been thoroughly discussed by Professor Lorna Woods.

So, when is the essence of the right adversely affected?

Before discussing certain aspects of Tele2 and Watson, it is first important to draw attention to the provision which enables data retention in the new e-Privacy Regs. Article 11 allows the EU or its Member States to restrict the rights contained in Articles 5-8 (confidentiality of communications, permissions on processing, storage and erasure of electronic communications data and protection of information stored in and related to end-users’ terminal equipment). From Article 11, it is clear that this can include data retention obligations, so long as they respect the essence of the right and are necessary, appropriate and proportionate. In Tele2 and Watson the CJEU noted that any limitation of rights recognised by the CFR must respect the essence of said rights [94]. The CJEU accepted the Advocate General (AG)’s Opinion that data retention creates an equally serious interference as interception and that the risks associated with the access to communications maybe greater than access to the content of communications [99]. Yet the CJEU were reluctant to hold that data retention (and access to) adversely affects the essence of those rights [101]. This appears to highlight a problem in the CJEU’s reasoning, if the CJEU, like the AG accept that retention of and access to communications data is at least on par with access to the content, it makes little sense to then be reluctant to hold that data retention adversely affects the essence of those rights. The CJEU does so without making any distinction or reasoning for this differential treatment, and thus serves to highlight that perhaps the CJEU themselves do not fully respect the essence of those rights in the context of data retention.

The CJEU’s answer seems only limited catch all powers

The thrust of the CJEU’s judgment in Tele2 and Watson was that general and indiscriminate data retention obligations are prohibited at an EU level. But as I have highlighted previously, the CJEU’s answer was only in response to a very broad question from Sweden, which asked was:

[A] general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime…compatible with [EU law]?

Therefore, provided that national laws do not provide for the capturing of all data of all subscribers and users for all services in one fell swoop, this may be argued to be compatible with EU law. Both the e-Privacy Regs and the CJEU refer to ‘targeted’ retention [108, 113]. The CJEU gave an example of geographical criterions for retention in which David Anderson Q.C. asks whether the CJEU meant that ‘it could be acceptable to perform “general and indiscriminate retention” of data generated by persons living in a particular town, or housing estate, whereas it would not be acceptable to retain the data of persons living elsewhere? This is entirely possible given the reference from Sweden and the answer from the CJEU. In essence the CJEU have permitted discriminatory general and indiscriminate data retention which would in any event respect the essence of those rights.

Data retention is our cake, and only we can eat it

A final point on Tele2 and Watson was that the CJEU held that national laws on data retention are within the scope of EU law [81]. This by itself may not raise any concerns about protecting fundamental rights, but it is what the CJEU rules later on in the judgment that may be of concern. The CJEU held that the interpretation of the e-Privacy Directive (and therefore national Member State data retention laws) “must be undertaken solely in the light of the fundamental rights guaranteed by the Charter” [128]. The CJEU has seemingly given itself exclusive competence to determine how rights are best protected in the field of data retention. It is clear from the subsequent paragraph that the CJEU seeks to protect the autonomy of EU law above anything else, even fundamental rights [129]. This is despite the ECHR forming general principles of EU law and is mentioned in Article 15(1) (refers Article 6(3) of the Treaty of the European Union (TEU) specifically referring to the ECHR as such). Article 11 of the e-Privacy Regs refers to restrictions respecting the ‘essence of fundamental rights and freedoms’ and only time will tell whether the CJEU would interpret this as only referring to the CFR. Recital 27 of the e-Privacy Regs just like Recital 10 and 30 of the e-Privacy Directive refers to compliance with the ECHR, but as highlighted previously, Recitals are not legally binding.

Is the CJEU assuming too much?

A further concern, is that had the European Commission added general principles of EU law into Article 11, the CJEU may simply have ignored it, just as it has done in Tele2 and Watson. The problem with the CJEU’s approach is that it assumes that this judgment offers an adequate protection of human rights in this context. The ECHR has always been the minimum floor, but it appears the CJEU wants the CFR to be the ceiling whether it be national human rights protection, or protection guaranteed by the ECHR. What if that ceiling is lower than the floor? The AG in Tele2 and Watson stressed that the CFR must never be inferior to the ECHR [141]. But I have argued before, the EU jurisprudence on data retention is just that, offering inferior protection to the ECHR, and the qualification by the CJEU in Tele2 and Watson does not alter this. This position is strengthened by Judge Pinto De Albuquerque in his concurring opinion in the European Court of Human Rights judgment in Szabo. He believed that:

[M]andatory third-party data retention, whereby Governments require telephone companies and Internet service providers to store metadata about their customers’ communications and location for subsequent law-enforcement and intelligence agency access, appeared neither necessary nor proportionate [6].

Of course, Judge Pinto De Albuquerque could have been referring to the type of third party data retention which requires Internet Service Providers (ISPs) to intercept data from Over The Top (OTT) services, but his description is more in line with data retention of services’ own users and subscribers.

Conclusions

Although the CJEU has prohibited general indiscriminate data retention, the CJEU does not seem to have prevented targeted indiscriminate data retention. If the European Court of Human Rights (ECtHR) were to ever rule on data retention and follow its jurisprudence and the opinion of Judge Pinto De Albuquerque, this may put EU law in violation of the ECHR. This would ultimately put Member States in a damned if they do, damned if they do not situation, comply with the ECHR, and violate EU law autonomy; comply with EU law and violate the ECHR. When the minimum standards of human rights protection in this context are not adhered to, because of EU law, the ECHR should prevail. As anything less is a threat to human rights, meaning that the (even if well intentioned) CJEU can also be.

JHA4: chapter II:7

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Data retention and national law: whatever the CJEU rules, data retention may still survive!

Matthew White, Ph.D candidate, Sheffield Hallam University

Should governments be able to retain data on everyone’s use of the Internet and their phones – because it might arguably aid the fight against terrorism and serious crime? This ‘data retention’ issue raises fundamental questions about the balance between privacy and security, at both national and EU level. Initially, in the electronic privacy (e-Privacy) Directive, EU legislation set out an option for Member States to adopt data retention rules, as a derogation from the normal rule of confidentiality of communications in that Directive. Subsequently, in 2006, at the urging of the UK government in particular, the EU went a step further. It adopted the Data Retention Directive (DRD), which required telecom and Internet access providers to keep data on all use of the Internet and phones in case law enforcement authorities requested it.

However, on 8 April 2014, the Court of Justice of the European Union (CJEU) ruled that the latter Directive went too far. In its Digital Rights Ireland judgment (discussed here), that Court said that the EU’s Data Retention Directive (DRD) was invalid in light of a lack of compliance with the rights to privacy and data protection set out in Articles 7 and 8 of the EU Charter of Fundamental Rights (CFR) (para 69 and 73). This left open an important question: what happens to national data retention laws? Can they also be challenged for breach of the EU Charter rights, on the grounds that they are linked to EU law (the derogation in the e-Privacy Directive)? If so, do the standards in the Digital Rights Ireland judgment apply by analogy?

Instead of addressing this matter urgently, the United Kingdom government sat on its hands for a while and then unprecedentedly rushed through the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014). DRIPA 2014 was intended to be a reaction to the Digital Rights Ireland ruling, giving the UK as a matter of national law the power to retain data that had been struck down by the CJEU as a matter of EU law.

In 2015, Tom Watson (now the deputy leader of the UK Labour Party), David Davis (a Conservative party backbencher) and others challenged s.1 of DRIPA 2014 arguing that the powers to obligate data retention on public telecommunication operators set out in that section of DRIPA did not sufficiently reflect what the CJEU ruled in Digital Rights Ireland. Although that CJEU ruling only applied to EU legislation, they argued that it also applied by analogy to national legislation on data retention, since such legislation fell within the scope of the option to retain communications data set out in the derogation in the e-Privacy Directive, and so was linked to EU law (and therefore covered by the Charter). Even though the e-Privacy Directive only related to publicly available electronic communications services (Article 3(1)), it is submitted that any extension of the definition of public telecommunications operator would fall within the Data Protection Directive, and thus the CFR would still apply. The High Court (HC) ruled in the claimants’ favour in Davis where an order was made for s.1 of DRIPA to be disapplied by the 31^st of March 2016, insofar as it is incompatible with Digital Rights Ireland (para 122). This was in the hopes that it would give Parliament sufficient time to come up with a CFR compliant data retention law (para 121).

The government appealed to the Court of Appeal (CoA) which took a radically different approach maintaining that ‘the CJEU in Digital Rights Ireland was not laying down definitive mandatory requirements in relation to retained communications data’ (para 106). But for the sake of caution, the CoA made a preliminary reference to the CJEU asking:

(1) Did the CJEU in Digital Rights Ireland intend to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?

(2) Did the CJEU in Digital Rights Ireland intend to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 ECHR as established in the jurisprudence of the ECtHR?  

The CoA was not the only national court to make a preliminary reference to the CJEU on matters regarding data retention and the reach of Digital Rights Ireland. On the 4^th May 2015, the Force was with Kammarrätten i Stockholm when it asked the CJEU:

Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime (as described [below under points 1-6]) compatible with Article 15(1) of Directive 2002/58/EC [the electronic privacy Directive], 1 taking account of Articles 7, 8 and 15(1) of the Charter?

If the answer to question 1 is in the negative, may the retention nevertheless be permitted where:

access by the national authorities to the retained data is determined as [described below under paragraphs 7-24], and

security requirements are regulated as [described below under paragraphs 26-31],

and all relevant data are to be retained for six months, calculated as from the day the communication is ended, and subsequently deleted as [described below under paragraphs 25]?

The way in which the first question in Davis and Watson is asked doesn’t specify whether the general obligation applies to every service provider under the state’s jurisdiction or specific service providers to retain what they individually process. The assumption is the former as ‘all means of electronic communication and all traffic data without any distinctions’ implies a catch all to the relevant services. The Home Secretary (and indeed the government) may argue that if the CJEU rules in the negative (note that Article 15(1) of the e-Privacy Directive only applies to publically available electronic communications services, thus the justification for retaining data from other services would have to be found in the Data Protection Directive (DPD)) it would mostly have affected cl.78 of the Investigatory Powers Bill (IPB) (currently before Parliament) which would grant the Secretary of State the power to issue retention notices on a telecommunications or any number of operators to retain for e.g. any or all data for 12 if the power in cl.1 of the draft Communications Data Bill (dCDB) had been replicated. The dCDB was a legislative measure introduced in 2012 to allow public authorities to keep up to date with the sophistication of e-Crime. Clause 1 maintained that:

1 Power to ensure or facilitate availability of data

(1) The Secretary of State may by order—

(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 2, or

(b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.

(2) An order under this section may, in particular—

(a) provide for—

(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,

(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators.

This measure was, however abandoned because the Liberal Democrats (in the then Coalition Government) did not approve of the far reaching nature of the proposal. In regards to cl.1, it clearly was a general power, as no distinction was made on who the obligation to retain may fall upon, and thus it is submitted that this power is analogous to the power which is the subject of the question being asked of the CJEU. Clause 78(1) of the IPB on the other hand, makes the distinction that a data retention notice may require a telecommunications operator to retain relevant communications data. Though there are two possible conflicts, the first, based on the assumption that the CJEU rules in the negative (to the first question) is cl.78(2)(a) and (b). This gives the Secretary of State the discretion to issue retention notices on any description of operators to retain all or any description of data. This could be considered a general obligation because it could affect all telecommunications operators and then be classed as a general obligation. 

 Secondly, retention ‘without distinction’ or ‘exceptions’ may be important when it comes to traffic data pertaining to journalists, politicians, and the medical and legal professions. But because the reference doesn’t mention specific service providers it cannot be said with certainty how much this would affect cl.78(1) which doesn’t make distinctions or exceptions.

When it comes to limitations on data retention, there is at least one, which was first noted in s.1(5) of DRIPA 2014 which allowed for a 12 month maximum period of retention. This is replicated in cl.78(3) and takes on board the recommendation of the Advocate General’s opinion (AG) in Digital Rights Ireland (para 149).

The President of the CJEU felt it was desirable to combine both preliminary references. The questions of access by both the Swedish and UK courts do not directly affect the cl.78 issuing of retention notices (insofar that it at least doesn’t involve every telecommunications operator) nor does answering whether Article 7 and 8 was intended to extend beyond Article 8 ECHR jurisprudence. The security arrangements are dealt with by cl.81 (whether they are adequate is a different matter) and thus not relevant to the issuing of retention notices.

This, however, proceeds on the assumption that the CJEU will rule in the negative to the Swedish preliminary reference regarding retention being lawful for the purposes of access, because if it does not, cl.78(2)(a) and (b) would not be affected at all. Moreover, the HC in Davis felt that the CJEU believed that data retention genuinely satisfied an objective of general interest (para 44) and that it must be understood to have held that a general retention regime is unlawful unless it is accompanied by an access regime which has sufficiently stringent safeguards to protect citizens' rights set out in Articles 7 and 8 of the CFR (para 70). The CoA was silent on this matter, and therefore for the mean time, it is understood that if the CJEU rules in the positive, cl.78 would not be affected as a matter of EU law.

On the matter of whether the HC or the CoA had interpreted Digital Rights Ireland correctly, it is important to highlight one of the justifications for the CoA conclusions. It maintained in relation to mandatory requirements, that in the opinion of the AG, he was at least, not looking for the Directive to provide detailed regulation (para 77). Yet the CoA failed to mention his conclusions, where it was stated that the DRD was invalid as a result of the absence of sufficient regulation of the guarantees governing access to (by limiting access, if not solely to judicial authorities, at least to independent authorities, or, failing that, by making any request for access subject to review by the judicial authorities or independent authorities and it should have required a case-by-case examination of requests for access in order to limit the data provided to what is strictly necessary (para 127)) the data collected/retained and that the DRD should be suspended until the EU legislature adopts measures necessary to remedy the invalidity, but such measures must be adopted within a reasonable period (para 157-158). So at least in this regard the AG actually supports the stance of the HC (even though no reference was made on this point) and may therefore have had implications for the IPB (which does not require judicial or independent authorisation/review) in relation to access to communications data without a word from the CJEU.

Many thanks to Steve Peers for helpful comments on an earlier draft.

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