The cancellation of the European law that requires the retention of communication data, i.e. telephone and email data for at least 6 months brings trouble into the European Union. Leaders in the fight against cybercrime and terrorism who were happy about it are now quite concerned.
On April 8th, EU Court of Justice canceled the European law that was passed in 2006, after the shock of the terrorist attacks in Madrid in 2004 and London in 2005. The law decision was further attacked by some Irish and Austrian telephone operators.
The Court simply canceled the law retroactively. This creates a real problem as a legal vacuum is created and operators begin to act piecemeal.
The law implied to keep for at least 6 months all metadata communications, i.e. the calling number and the number or address contacted, time and place of the call to investigate and prosecute “serious crimes”.
The Court did acknowledge the usefulness of this law, but invalidated it as “it creates a major interference, especially regarding the fundamental rights of respect for private life.”
The Belgian Association of Internet Service Providers (ISPA) asked the Belgian government to quickly clarify the consequences of the judgment which leads to “a situation of legal uncertainty.”
The Director of the European Centre against Cybercrime, Troels Oerting , lamented ” now a very limited ability to identify cyber criminals and child molesters online.”
National legislation on metadata conservation will therefore continue to remain in force and involve “bind telecom operators,” said the Luxembourg Ministry of Justice.
The judgment implies difficulties for countries like France, which have transposed the EU legislation into national law.
This cancels any void harmonization at the Member States level. “We’ll meet again with disparate laws, some very restrictive, others not at all, depending on the country,” commented an expert source.
The European Commission services “are analyzing the judgment to determine what the consequences are “, explained Michele Cercone, spokesman for Cecilia Malmström, Commissioner for Home Affairs. The latter was in fact committed to revise the law, but she was waiting for the decision of the European Court to expose her proposals.
The judgment pointed three problems: the duration of data retention, considered “disproportionate”, the lack of protection against the risk of abuse, and the lack of measures for “limited to what is strictly necessary” interference in private individuals’ life.
The cancellation of EU legislation requires the submission of a new proposal to the States and to the European Parliament, said several European sources. This will not be done soon, with the election of the new European Parliament coming on May 25th and the appointment of the new European Commission taking place in November.
The Dutch Liberal MEP Sophie in ‘t Veld warned against any attempt to renew the safety purpose of the canceled law. “The future law on the fight against terrorism must respect our privacy and fully protect personal data” she said.
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