(CN) – Recommending some slack for digital-privacy laws, a magistrate for Europe’s highest court said Thursday that cellphone metadata should be accessible to police even if a crime is not particularly serious.
The case before the European Court of Justice arose in Spain where the law since 2007 had allowed police to access telephone identification data only when investigating a serious crime, defined as an offense punishable by at least five years in prison.
Citing this law in May 2015, a court in Tarragona, Spain, refused a request by police who were investigating the theft of Hernandez Sierra’s cellphone from earlier that year.
Sierra had been seriously injured in the robbery, and police wanted to find out what if any telephone numbers had been activated on the phone in the days following its theft. They also wanted the personal data associated with whatever numbers the first search generated.
Later that year, Spanish lawmakers introduced new criteria for determining the seriousness of an offense when personal data is at issue. While one criterion related to terrorism and organized crime, the other laid down a minimum threshold of three years’ imprisonment.
With prosecutors appealing the refusal of their cellphone search in the Sierra case, the court put the case on hold to invite input from the European Court of Justice.
Advocate General Henrik Saugmandsgaard Oe focused his recommendation Thursday on the point that the sought-after metadata does not seriously compromise privacy rights.
As such, he said, an offense need not be particularly serious to justify the data’s disclosure.
“The potentially harmful effects for the persons concerned by the request for access in question are both slight and circumscribed,” Saugmandsgaard Oe wrote. “As they are intended to be used in the sole context of a measure of investigation, the requested data are not intended to be disclosed to the public at large. In addition, the right of access given to the police authorities is accompanied by procedural guarantees under Spanish law, since it is subject to review by a court, which, moreover, resulted in the rejection of the police request in the main proceedings.
“The interference with the above-mentioned fundamental rights entailed by the communication of those data relating to civil identity is not in my view particularly serious, since data of such a type and such a limited scope do not in themselves make it possible to obtain varied and/or specific information about the persons concerned and therefore do not directly and seriously affect their right to a private life in those particular circumstances.”
Saugmandsgaard Oe also voiced doubt that the possible penalties should be the focus since “significant differences … still exist between the criminal systems of the member states.”
Other objective factors that must also be taken into account, on a case-by-case basis, should include whether “the unlawful conduct is intentional, is accompanied by aggravating circumstances, [and] was a second or subsequent offense.”
Saugmandsgaard Oe’s opinion is not binding on the Luxembourg-based court, which will now begin its own deliberations in the case.