UK groups the Open Rights Group (ORG), Statewatch and Privacy
International, amongst 40 others, have submitted their arguments in
support of Ireland's ongoing case to have the Directive
repealed.
Ireland supports the aims of the Directive but is arguing that
the way in which it was passed was wrong. It says that the process
used was designed for trade and that it should have been passed
through a process designed for security matters. That process is
tougher, requiring a unanimous vote rather than a majority one.
The civil liberties groups want the ECJ to reject the Directive
on different grounds, though.
"While it is true that there is no legal basis for the
Directive, it is first and foremost illegal on human rights
grounds," said the document lodged at the Court. "We urge the Court
to base its decision on the incompatibility with human rights
rather than the lack of competence."
The groups are worried that a rejection of the Directive on
Ireland's grounds would lead to an identical law being introduced
through different channels.
The Data Retention Directive requires that telecommunications
companies keep records of customers' communications for up to two
years. When implementing the Directive into national law, countries
can choose any retention period of between six months and two
years.
The records to be kept are of the fact of the communications and
not their content, for example what telephone called what telephone
number when and for how long, but not what was said.
The groups have argued that this retention breaches Article 8 of
the European Convention on Human Rights (ECHR) which guarantees the
right to respect for private life and correspondence.
"The European Court of Human Rights has repeatedly held that the
metering of traffic data without the consent of the subscriber
constitutes an interference with the rights to respect for private
life and correspondence," said the submission to the ECJ. "Just as
the metering of telecommunications by government officials, the
state-imposed retention of traffic data by private
telecommunications companies is an interference with article eight
of the EHCR."
The bodies also argued that the activity is in breach of Article
10 of the EHCR, which guarantees freedom of expression, including
the freedom to receive and impart ideas without state
interference.
"Retaining all traffic data on the population's communications
would have a disturbing effect on the free expression of
information and ideas," said the groups' submission. "In comparison
to the marginal benefits of traffic data retention, its negative
effects on the freedom of expression are major. Therefore, blanket
data retention requirements are disproportionate and incompatible
with article 10."
The groups claim that it is essential that the Directive be
challenged not just on Ireland's procedural grounds, but on its
more fundamental arguments. "A decision on human rights is urgently
needed to protect the privacy of telecommunications in Europe," it
said.
