European court to rule on data storage law

THE HIGH Court has asked the European Court of Justice to determine if a European directive allowing the storage of telecommunications data for potential use by law enforcement agencies violates rights of privacy and communication.

The ECJ decision will have major implications for mobile phone users across Europe.

Given the rapid advance of technology, it is “of great importance” to define the legitimate legal limits of modern surveillance techniques used by governments especially with regard to telecommunications data retention, Mr Justice Liam McKechnie said yesterday.

“Without sufficient legal safeguards, the potential for abuse and unwarranted invasion of privacy is obvious.” The potential of “a prima facie interference” with all citizens’ rights to privacy and communications was “so great that a closer scrutiny of the relevant legislation is certainly merited”.

He was giving his reserved ruling granting a reference to the European Court of Justice, for a preliminary ruling, of issues concerning the validity of a 2006 EC directive (2006/24/EC).

The reference was sought in proceedings brought by Digital Rights Ireland Ltd (DRI), a non-governmental non-profit organisation concerned with promotion and protection of civil and human rights, particularly in the context of telecommunication technologies. The Human Rights Commission (HRC) is also involved in the case as an amicus curiae (adviser to the court on legal matters).

In its action against the Ministers for Communications and Justice, the Garda Commissioner and the State, DRI claims the defendants have wrongfully exercised control over data as they have illegally processed and stored data relating to DRI and other mobile phone users contrary to Irish and European law.

DRI claims the directive, intended to harmonise telecommunication data retention obligations across the EU, is invalid and in breach of rights under the EU and EC treaties, the European Convention on Human Rights and the Charter of Fundamental Rights.

DRI has also challenged the constitutionality of the Criminal Justice (Terrorist Offences) Act 2005 which requires telecommunications service providers to retain traffic and location data relating to phone communications and provides for access to such retained data for law enforcement and security purposes.

On grounds including that the impugned measures affect almost all of the population and the case raises important constitutional questions, Mr Justice McKechnie agreed to grant the ECJ reference.

DRI was a “sincere” litigant which had raised bona fide issues and had the required legal standing to bring a popular action to determine whether the impugned laws violate the rights both of citizens and companies to privacy and communications, including the right to privileged communications, he ruled.

The involvement of the HRC supported the proposition the case raised matters of fundamental public importance, he said. There was “a significant element of public interest concern” regarding the retention of personal telecommunications data and how this could affect persons’ rights of privacy and communication.

The precise wording of the issues to be referred will be decided after the sides have considered the judge’s ruling. The judge rejected arguments by the defendants that DRI did not have the required legal standing to bring the proceedings or should have to provide security for the legal costs of the proceedings.