EU Court Adviser OKs National Data Mining

(CN) — National laws that require communications providers to retain subscribers' data may be legal despite a landmark ruling that a continent-wide data-retention law is unconstitutional, an EU high court adviser said Tuesday.

After the European Court of Justice invalidated the EU's data-retention law in 2014's Digital Rights Ireland — finding that the law unconstitutionally interfered with citizens' right to privacy and went beyond what was necessary to fight serious crime — businesses and individuals in Sweden and the United Kingdom challenged data-retention laws in those two nations.

In Sweden, telecommunications provider Tele2 Sverige informed the Swedish government that it would stop retaining its customers' data despite a Swedish law requiring electronic communications providers to retain their subscribers' data.

Individuals sued the British government over a law requiring telecommunications operators to retain all data — except the content of communications themselves — for a year.

Appeals courts in Sweden and Britain asked the EU high court to weigh in on whether national data-retention laws are constitutional in light of the Digital Rights Ireland ruling and the EU constitution.

In his advisory opinion for the court, Advocate General Henrik Saugmandsgaard Oe noted that neither Britain nor Sweden requires operators to retain the content of subscribers' communications. Given that, Oe said a national general obligation to retain data may be compatible with EU law — if strict requirements are met.

Data-retention obligations must be legislative or regulatory measures "possessing the characteristics of accessibility, foreseeability and adequate protection against arbitrary interference," Oe said.

Additionally, the national laws must respect citizens' rights to private life and protection of personal data as required by the EU constitution, Oe said.

The court adviser also said that while thwarting serious crime is a valid reason to require data retention, combating ordinary offenses and helping smooth civil proceedings are not. Furthermore, national authorities must consider whether other measures would be more effective to fight serious crime and use those instead. And if data retention is necessary, access to the data, the retention periods and protection and security of the data retained is paramount to avoid running afoul of the EU constitution, Oe said.

Oe's opinion is not binding on the Court of Justice, which has begun its own deliberations in the case.

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