Data retention laws breach privacy rights, says legal advisor to the EU's highest court

Advocate General Pedro Cruz Villalón has recommended that the Court of Justice of the European Union (CJEU) rule that the EU's Data Retention Directive be deemed to be "incompatible with the Charter of Fundamental Rights", according to a statement issued by the CJEU. The CJEU is not obliged to follow the opinion of Advocate Generals when issuing its judgment on cases, but it does so in the majority of cases.

However, Cruz Villalón said that whilst the Directive should be scrapped he said the CJEU should suspend a ruling on the invalidity of the law to allow EU law makers to create a replacement law that delivers "the measures necessary to remedy the invalidity found to exist".

The Data Retention Directive was established in 2006 to make it a requirement for telecoms and other electronic communications companies to retain personal data for a period determined by national governments of between six months and two years. The Commission decided to regulate following terrorist attacks in Madrid in 2004 and London in 2005.

Under the Directive telecoms and other electronic communications firms are required to retain identifying details of phone calls and emails, such as the traffic and location, to help the police detect and investigate serious crimes. The details exclude the content of those communications.

Digital Rights Ireland, which campaigns on the issue of citizens' online rights, has claimed that the Directive interferes with fundamental EU rights, including the right to privacy, the right to the protection of personal data and the right to freedom of expression.

In his opinion, Cruz Villalón said that there are insufficient safeguards written into the Directive to ensure privacy rights are respected.

He said that it is possible, under the framework, "to create a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity" and that therefore there is a risk that data collected could be used for "unlawful purposes which are potentially detrimental to privacy or, more broadly, fraudulent or even malicious".

The Advocate General said that the Directive should have set out controls around the access to data and how that data is used and further found that an upper limit of two years on the length of time telecoms and other electronic communications companies could be obliged to retain data under the framework was not proportionate. The maximum time that member states should be allowed to force telecoms and other electronic communications companies to hold onto data collected should be less than one year, he advised.

Cruz Villalón said that the aims of the Directive were "perfectly legitimate", according to the CJEU's statement, and said that the laws, although invalid, should stand until replacement provisions are adopted. The advisor came to the conclusion after weighing up "the various competing rights".

"The effects of a finding that the Directive is invalid should be suspended pending adoption by the EU legislature of the measures necessary to remedy the invalidity found to exist, but such measures must be adopted within a reasonable period," Cruz Villalón said, according to the statement.