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European Data Retention Rule Could Violate Fundamental EU Law 61

Posted by samzenpus
from the listen-to-the-law dept.
An anonymous reader writes in with a story about the Constitutional Court of Austria objecting to the EU's data retention law. "The European Union's data retention law could breach fundamental E.U. law because its requirements result in an invasion of citizens' privacy, according to the Constitutional Court of Austria, which has asked the European Court of Justice (ECJ) to determine the directive's validity. The primary problem with the data retention law is that it almost exclusively affects people in whom government or law enforcement have no prior interest. But authorities use the data for investigations and are informed about people's personal lives, the court said, and there is a risk that the data can be abused. 'We doubt that the E.U. Data Retention Directive is really compatible with the rights that are guaranteed by the E.U. Charter of Fundamental Rights,' Gerhart Holzinger, president of the Constitutional Court of Austria said in a statement."
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European Data Retention Rule Could Violate Fundamental EU Law

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  • by Anonymous Coward on Thursday December 20, 2012 @03:18AM (#42345605)

    It's worth remembering the history of these data retention laws. Basically Blair (as a proxy for Bush) pushed these through when the UK had the EU Presidency in 2005:

    http://www.euractiv.com/infosociety/uk-presidency-revive-data-storag-news-214430

    UK had a terrorist attack in 2005, the police tracked one suspect by his phone. Blair then insisted on data retention, saying it was necessary to catch this guy in Italy and just happened to have a piece of legislation drafted already. The EU caved and let him push it through when he held the UK EU presidency.

    Oh course the logic is faulty, he WAS caught without the data retention directive, so it wasn't necessary. He was caught because he didn't know his phone could be tracked, post data retention, everyone knows it, so he would have thrown away the phone now.

    The basic idea that everyone is a future potential criminal to be monitored, is very powerful. Because the police never reveal the millions of times they've poked into people lives without finding anything, only the few times they poke into the lives of people and arrest a terrorist/pedo and occasionally the times they get caught snooping into a celebrities lives for Murdoch, but mostly only the pro-surveillance marketing stuff is ever visible, with the rest kept secret.

    • by serviscope_minor (664417) on Thursday December 20, 2012 @05:06AM (#42345931) Journal

      Well, Blair was one of the bigger assholes. He was effective and essentially had basically no morals.

      I've also been saddened by the public response to such things as terrorist attacks.

      I have been deeply impressed by the Norwegian response though. They're not going to let some guy murder a bunch of people and destroy the civility of their legal system. I wish the public in the UK would respond more like that, rather than (in general) "oe noes!!! some one died! Lets spend an arbirtary amount of money trying to prevent this one death! Screw freedoms! Please think of teh children!!!"

      • "Well, Blair was one of the bigger assholes. He was effective and essentially had basically no morals."

        Blair was a direct clone of Bush in disguise.

      • " there is a risk that the data can be abused"

        Understatement of the year.

    • by siddesu (698447) on Thursday December 20, 2012 @05:21AM (#42345977)

      It is also worth noting that some of the shakier democracies in Eastern Europe tried to use these provisions to introduce large-scale spying systems. I have a friend from Bulgaria who told me how the threat from blanket legal monitoring of internet communications by the government was narrowly averted by protests, and how the police beat up some of the protesters during one or two demonstrations a couple of years ago. I think there were similar measures elsewhere.

      The directive was bad in form and in spirit, and to my eye caused more harm and damage than good overall. Which happens often if the full implications of a law are not discussed and taken seriously. But we and the children are safe, I suppose.

      • by peppepz (1311345) on Thursday December 20, 2012 @06:19AM (#42346147)
        My country, too, which is in western Europe, is known for letting wiretapping data fall into the wrong hands. We have had cases of politicians looking for information to use against their enemies, of wealthy people keeping an eye on competitors, employees or even customers, or hackers publishing stolen data which wasn't locked down carefully enough.

        Wiretapping is important, the evidence collected through it helped identify many criminals (and save many innocents). But it must be done only under the warrant of a judicial authority, and it should be performed only by trusted (and accountable) professionals. That's what the constitutions of many europen states say, and the reason they do is not because, back in the time when they were written, mass surveillance was not as easy as it is today.

    • by FriendlyLurker (50431) on Thursday December 20, 2012 @05:31AM (#42346009)

      It is also worth considering why our political and financial elite are so keen with data retention laws:

      National Intelligence Council's Global Trends 2030 report [bloomberg.com], quotes:

      "...major trends are the end of U.S. global dominance, the rising power of individuals against states, a rising middle class whose demands challenge governments, and a Gordian knot of water, food and energy shortages, according to the analysts."

      "[enormous caches of data] will enable governments to ' figure out and predict what people are going to be doing' and 'get more control over society,'

      We (collectively) pose a risk to the power of the 0.1% going forward, and bills like this are being pushed through in "democratic" nations worldwide to "get more control over society".

      • by Anonymous Coward

        Ironically, by introducing laws that hamper privacy to gain more control, the governments are agitating the public and provoke more and more hostilities towards the ruling elite. And it's spreading outside the Internet Generation too. I recently had had a conversation with a guy who owns his own company selling window blinds. He's been in business for the last 30 years and the closest he gets to a computer is when he needs to read emails from his customers every time his son is not around to do it for him.

  • there's a precedent (Score:5, Interesting)

    by terec (2797475) on Thursday December 20, 2012 @03:25AM (#42345629)
    There was a similar conflict when the German government wanted to collect information about everybody's religion and communicate that to their employers and churches (ostensibly for taxation purposes). If that isn't a grave violation of privacy in a country that murdered millions because of their religious affiliation, I don't know what is. There was a lawsuit over it. The outcome? The EU declared it legal. Logic apparently goes out the window when European governments or large special interests themselves want to collect data on their citizens.
    • by lordholm (649770)

      This sort of thing is done in many many EU member states, that it does not violate EU-law is not that strange. However, it is strange that the German constitution does not ban it with respect to the background.

      • by terec (2797475)

        This sort of thing is done in many many EU member states

        Really? Which ones? Because, AFAIK, Merkel had to go back to the EU and ask for the EU regulations to be changed specifically so that the German practice remained legal.

        • by lordholm (649770)

          Sweden for example have church tax for church members, this tax is taken out directly on your salary payed to the tax office.

          • by terec (2797475)
            There are lots of European countries that have some kind of public financing of churches through taxes, that's not the issue. For some of them, you may also have to declare what you want to happen to the money. What's unique to Germany AFAIK is that you have to declare your actual religion both to the government and to your employer.
    • by Anonymous Coward

      There was a similar conflict when the German government wanted to collect information about everybody's religion and communicate that to their employers and churches (ostensibly for taxation purposes). If that isn't a grave violation of privacy in a country that murdered millions because of their religious affiliation, I don't know what is. There was a lawsuit over it. The outcome? The EU declared it legal. Logic apparently goes out the window when European governments or large special interests themselves want to collect data on their citizens.

      Logic goes out the window?

      Consider yourselves lucky you had logic this long. Logic and common sense left US law decades ago.

    • by Anonymous Coward on Thursday December 20, 2012 @05:22AM (#42345981)

      That case is far more complicated. The only collect the data for the religious communities that want their church tax collected by the government. And what people need to specify is which church people belong to, not what they believe.
      A lot of people even of those still going to church will not specify their religion because they don't want to pay the church tax (in theory that also means they can't get married in church etc. but usually you can just join the church again for a little while if you really want that).
      And you forgot that you're also supposed to report that information to your bank, since they too are involved in taxation nowadays.
      So to summarize:
      1) They do not and never did collect info on one's religion, but only church membership
      2) It is only done for some churches (which actually is a part of another lawsuit, more churches want the government to collect money for them).
      3) All of the churches on that list are on it because they want to be
      4) To my knowledge there is no legal problem with you not specifying this to the government etc. as long as you can reach a different agreement with your church (you likely won't be able to, but that's not the government's fault).
      Which all makes this not really a privacy issue, since the only case in which you have to specify anything is if you _choose_ to be part of a church that forces you to do it.

      • by Pax681 (1002592)

        That case is far more complicated. The only collect the data for the religious communities that want their church tax collected by the government. And what people need to specify is which church people belong to, not what they believe. A lot of people even of those still going to church will not specify their religion because they don't want to pay the church tax (in theory that also means they can't get married in church etc. but usually you can just join the church again for a little while if you really want that). And you forgot that you're also supposed to report that information to your bank, since they too are involved in taxation nowadays. So to summarize: 1) They do not and never did collect info on one's religion, but only church membership 2) It is only done for some churches (which actually is a part of another lawsuit, more churches want the government to collect money for them). 3) All of the churches on that list are on it because they want to be 4) To my knowledge there is no legal problem with you not specifying this to the government etc. as long as you can reach a different agreement with your church (you likely won't be able to, but that's not the government's fault). Which all makes this not really a privacy issue, since the only case in which you have to specify anything is if you _choose_ to be part of a church that forces you to do it.

        Not in Scotland.,.... anything paid to the church by members is volountary such as donations and collections.
        i have not heard of a tax being collected for the purposes of giving it to the church happen in Scotland for for a wee while and was in fact officially abolished in think in 2000. in practise though ... in fact just looked it up.

        Scotland In Scotland teinds were the tenths of certain produce of the land appropriated to the maintenance of the Church and clergy. At the Reformation most of the Church p

  • Watch the law get changed in Europe.

    • Re: (Score:3, Informative)

      by lordholm (649770)

      Well, if this is found to break the fundamental charter, which is part of the treaties, it is not that easy to lobby for it to change. That would require a massive effort which would not be very practical.

    • To translate what you said to American: "Watch the Constitution get changed".

      That does not happen often in the US or EU. It's fundamental EU laws we're talking about.

      • by kdemetter (965669)

        It only happens when it's in the EU's ( not the people's ) best interest.

        • I beg to differ in general and in this specific case. In this case Austria claims the Data Retention Directive is in conflict with the Charter of Fundamental Rights of the European Union which sets out the whole range of civil, political, economic and social rights of European citizens and all persons resident in the EU (including the European Convention on Human Rights). At what point has the Charter or the [non-EU] ECHR ever been changed?

          I find that many European citizens that are hostile towards the EU i

  • by Anonymous Coward on Thursday December 20, 2012 @03:56AM (#42345737)

    I've been living in Austria for a little while now, and it makes me happy that the government here is not just filled with pushovers when it comes to the EU's lawyers churning out horrible, impractical, technically retarded ideas.

    Who knows what will actually be passed, though :-(. Austria is like a little chunk of paradise in the first world; I doubt people here realize how close they're coming to screwing it up. This is, after all, a country where every murder makes the evening news, police violence is completely unknown, people start getting perceptibly nervous when a train/streetcar/subway is 2 minutes late, and everyone likes to complain how tough life is while they're on their 5 weeks of paid vacation, collecting their 14-months-a-year paychecks, and living with dignity (not to mention enough disposable income to buy iPhones etc) even if they're cleaning toilets for a living.

    *deep breath*

    Point is, I hope that this actually prevents the law (and similar laws) from being passed, but I'm not exactly holding out hope that the Austrian government suddenly understands, on a deeply intuitive level, that these laws are actually dangerous and designed to subtly erode the freedom in a country.

    • It's not the government putting the european data retention directive in question. They are the same jerks as any gov. It's the constitutional court who do their job which is basically protecting the constitution from the bullshit the gov (or the EU) might come up with.
    • Austria is like a little chunk of paradise in the first world;

      Because of the kangaroos, right?

      I've been living in Austria for a little while now, and it makes me happy that the government here is not just filled with pushovers when it comes to the EU's lawyers churning out horrible, impractical, technically retarded ideas.

      You say that, but it's a battle of EU laws, one good, one bad, it would seem. Hard to see the more fundemental one as retarded. Most legal systems will push out bad ideas. Let's hope that

    • Re: (Score:3, Informative)

      by lordholm (649770)

      The governments are represented in the Council, they are the assholes that pushed this through in the first place, the leading culprits where the British and the Swedish (previous) government under lead of the Swedish minister of justice Thomas Bodström. The Parliament did approve of it, but only after the Council said that if you don't approve, we will treat it as a matter of "criminal and justice cooperation", an area where the Parliament had no co-legeslative rights with the Council before the Lisbo

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