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Data Retention Directive

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Directive 2006/24/EC
European Union directive
TitleDirective on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks
Made byEuropean Parliament and European Council
Made underArticle 95 TEC
Journal referenceL 105, pp. 54–63
History
Date made15 March 2006
Entry into force3 May 2006
Other legislation
AmendsDirective 2002/58/EC
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The Data Retention Directive (Directive 2006/24/EC), later declared invalid by the European Court of Justice, was at first passed on 15 March 2006 and regulated data retention, where data has been generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks. It amended the Directive on Privacy and Electronic Communications. According to the Data Retention Directive, EU member states had to store information on all citizens' telecommunications data (phone and internet connections) for a minimum of six months and at most twenty-four months, to be delivered on demand to police authorities.

Under the directive, the police and security agencies would have been able to request access to details such as IP addresses and time of use of every email, phone call and text message sent or received. There was no provision in the directive that permission to access the data must be confirmed by a court. On 8 April 2014, the Court of Justice of the European Union declared the Directive invalid in response to a case brought by Digital Rights Ireland against the Irish authorities and others because blanket data collection violated the EU Charter of Fundamental Rights, in particular the right of privacy enshrined in Article 8(1).[1][2][3]

History

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In September 2005, during the United Kingdom's presidency of the European Council, a plenary session was held concerning the retention of telecommunications data, chaired by the UK's Home Secretary.[4] This led to an agreement reached by the Council at its meeting on the 1 and 2 December that was then adopted in March 2006, under the Austrian presidency.[5]

Implementation

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See also: Telecommunications data retention § European Union

Romania

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The EU directive has been transposed into Romanian law as well, initially as Law 298/2008.[6] However, the Constitutional Court of Romania (CCR) subsequently struck down the law in 2009 as violating constitutional rights.[7] The court held that the transposing act violated the constitutional rights of privacy, of confidentiality in communications, and of free speech.[8] The European Commission subsequently sued Romania in 2011 for non-implementation, threatening Romania with a fine of 30,000 euros per day.[9] The Romanian parliament passed a new law in 2012, which was signed by president Traian Băsescu in June.[10] The Law 82/2012 has been nicknamed "the Big Brother law" (using the untranslated English expression) by various Romanian non-governmental organisations opposing it, as well as the Romanian media.[9][11][12] On 8 July 2014 this law too was declared unconstitutional by the CCR.[13]

Criticism

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The Data Retention Directive had sparked serious concerns from physicians, journalists, privacy and human rights groups, unions, IT security firms and legal experts.[14]

Annullment

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On 8 April 2014, in the landmark Digital Rights Ireland and Ors case, the Court of Justice of the European Union declared the Directive 2006/24/EC invalid for violating fundamental rights. The Council's Legal Services have been reported to have stated in closed session that paragraph 59 of the European Court of Justice's ruling "suggests that general and blanket data retention is no longer possible".[15]

A legal opinion funded by the Greens–European Free Alliance in the European Parliament found that the blanket retention of data of unsuspicious persons generally violates the EU Charter of Fundamental Rights, both in regard to national telecommunications data retention laws and to similar EU data retention schemes (Passenger name records, Terrorist Finance Tracking Programme, Terrorist Finance Tracking System, law enforcement access to the Entry-Exit-System, Eurodac, Visa Information System).[16]

See also

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References

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  1. ^ "ECJ Press Release in Digital Rights Ireland Data Retention case" (PDF). Court of Justice of the European Union. 8 April 2014. Retrieved 8 April 2014.
  2. ^ "Case number C-293/12". Court of Justice of the European Union. 8 April 2014. Retrieved 8 April 2014.
  3. ^ "Judgment of the ECJ in Digital Rights Ireland data retention challenge". EUR-Lex. Official Journal of the European Union. 8 April 2014. Retrieved 8 April 2014.
  4. ^ "Justice and Home Affairs Informal". 9 September 2005. Archived from the original on 2 February 2010. Retrieved 17 February 2014.
  5. ^ "PRESS RELEASE, 2709th Council Meeting, Justice and Home Affairs" (PDF). 21 February 2006. p. 2. Archived from the original (PDF) on 24 April 2013. Retrieved 17 February 2014.
  6. ^ "CE solicită României să transpună integral normele UE în privinţa păstrării datelolor | Romania Libera". Romanialibera.ro. 16 August 2011. Archived from the original on 12 August 2017. Retrieved 26 January 2014.
  7. ^ "The Legality of the Data Retention Directive in Light of the Fundamental Rights to Privacy and Data Protection | European Journal of Law and Technology". Ejlt.org. Archived from the original on 6 August 2019. Retrieved 26 January 2014.
  8. ^ Romanian Constitutional Court Decision no.1258 of 8 October 2009, Official Gazette no. 798 of 23 November 2009.In: http://ejlt.org//article/view/29/75 Archived 6 August 2019 at the Wayback Machine
  9. ^ a b "Traian Basescu a promulgat asa numita 'lege Big Brother' care prevede stocarea pentru sase luni a datelor de trafic ale tuturor utilizatorilor de telefonie si internet – Telecom – HotNews.ro". Economie.hotnews.ro. Retrieved 26 January 2014.
  10. ^ "EC drops case against Romania as data retention law passes". Telecompaper. Retrieved 26 January 2014.
  11. ^ "Preşedintele a promulgat "Legea Big Brother"". adevarul.ro. 12 June 2012. Retrieved 26 January 2014.
  12. ^ "Legea Big Brother a intrat in vigoare! Operatorii de telefonie si internet vor putea stoca o serie de date ale abonatilor". Avocatnet.ro. Archived from the original on 24 November 2016. Retrieved 26 January 2014.
  13. ^ "Legea 'Big Brother', prin care furnizorii de telefonie şi internet erau obligaţi să reţină date ale abonaţilor, declarată neconstituţională". mediafax.ro. Retrieved 8 July 2014.
  14. ^ Joint letter of 22 June 2010 to Cecilia Malmström, European Commissioner for Home Affairs, Viviane Reding, European Commission Vice-President with responsibility for Justice, Fundamental Rights and Citizenship and Neelie Kroes, European Commission Vice-President with responsibility for the Digital Agenda. (PDF, 88,5 kB)
  15. ^ "Stoppt die Vorratsdatenspeicherung! - EU lawyers tell Member States: Blanket communications data retention "no longer possible" (23 Jun)".
  16. ^ Boehm/Cole: Data Retention after the Judgement of the Court of Justice of the European Union Archived 8 November 2014 at the Wayback Machine.
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