CJEU Advocate General opinion could rewrite IP Bill

Today the European Court of Justice Advocate General Saugmandsgaard ØE has published his opinion to the Tom Watson (and formerly David Davis) case regarding the lawfulness of DRIPA. This opinion pre-empts the final judgment which is due later in the year.

The opinion makes for some interesting reading, particularly in light of the ongoing Investigatory Powers Bill.

As a reminder, the Digital Rights Ireland judgment which came back in April 2014 declared the Directive on Privacy and Electronic Communications to be unlawful and ordered EU Member States to stop retaining communications data on citizens. The UK Government chose to ignore the ruling and ploughed on with broad data retention of UK citizens by enacting the Data Retention and Investigatory Powers Act (DRIPA) as emergency legislation.

Tom Watson MP and David Davis MP decided to take the Home Secretary to court declaring DRIPA unlawful. They won (see our blog from last year) however the Home Office fought back and took the case to the European Court of Justice.

What has been published today shows that the Advocate General is taking a more nuanced approach to data retention and has been weighing up the advantages and disadvantages.

His opinion is that data retention should be lawful for the purpose of investigating serious crime only. In his words: “the fight against serious crime is an objective in the general interest that is capable of justifying a general data retention obligation, whereas combating ordinary offences and the smooth conduct of proceedings other than criminal proceedings are not.”

What is interesting is that his opinion; should it become the final view of the court, will require the Investigatory Powers Bill to be redrafted (on the face of the Bill not in a code of practice) to prohibit any access to data for anything other than investigating serious crime. That means the end to speculative requests and seeking out communications data for minor offences such as parking or traffic violations.

Furthermore access to the data will only be lawful if strict safeguards are in place; safeguards which he emphasises must be “mandatory” and which will ensure clarity on the “strict necessity” and proportionality of its retention and potential access. Reassuringly he states that national courts must not allow the use of general data retention but that they must “rigorously verify that no other measure or combination of measures” could be used instead.

The Advocate General suggests that these safeguards be written into law to ensure the protection of citizens. Rather than dictate how though he proposes leaving the finer detail to the individual country’s courts.

Whilst the Advocate General outlined his view of the advantages of data retention, he was clear that disadvantages do exist. He notes the difficulty of striking the right balance throughout the opinion, saying that disadvantages “arise from the fact that the vast majority of the data retained will relate to persons who will never be connected in any way with serious crime.”

Although it would have been preferable to have seen an even more robust view from the Advocate General towards these privacy concerns, his attempts to square the circle by taking a more nuanced approach will improve the Investigatory Powers Bill by preventing broad access to our communications data for minor or pre-emptive purposes and in turn move us closer to a stronger balance between privacy and security.