LUXEMBOURG (CN) — Serious threats to national emergency and precious few other circumstances give national governments a basis to keep data from cellphones and laptops, an adviser urged Thursday as the EU’s highest court prepares to delve into the issue.
The recommendation from Advocate General Manuel Campos Sánchez-Bordona comes in response to three cases, the most prominent of which was referred by the Irish Supreme Court involving the grisly 2012 murder of an Irish day care worker, whose killer was convicted based on telecommunications data.
Under a 2011 Irish law, the Retention of Data Act, service providers were required to keep internet metadata — start and end time of calls, location of the device — for two years. This national law was based on the 2006 Data Retention Directive from the European Union. But in 2014, the European Court of Justice struck down this regulation, finding that requiring data retention went too far. A subsequent decision from the Luxembourg-based court in 2020 involving complaints brought by privacy advocacy groups further restricted when authorities could require companies to keep data.
In the Irish case, a well-known architect, Graham Dwyer, was convicted in 2015 of the murder of Elaine O'Hara, who went missing and was initially presumed to have killed herself. A year after her disappearance, parts of her body were found by a dog walker. Nearby, a bag with handcuffs, leg restraints, a ball gag, a leather mask and a knife was also found. O'Hara’s body was eventually identified by dental records.
Subsequent investigation revealed that O'Hara met Dwyer through the fetish adult sex website Alt.com. Phone data, including text messages, obtained by the police showed that the two had an ongoing sexual relationship. In those messages, Dwyer described wanting to stab someone as part of a sexual fetish, writing, “I want to stick my knife in flesh while I am sexually aroused… I would like to stab a girl to death some time.” On the basis of the cellphone data, Dwyer was convicted of murdering O’Hara and setting up her death to look like a suicide.
Campos Sánchez-Bordona penned a second opinion Thursday for the other two cases, both referred by the German Federal Administrative Court. The two cases involve a challenge by internet service providers against a law that forced them to store their customers’ data.
In his opinion, which is nonbinding, Campos Sánchez-Bordona relied heavily on the 2020 ruling. “The answers to all the questions referred are already in the court’s case-law or can be inferred from them without difficulty,” the court wrote in a statement.
The Spanish advocate general argued that data retention is a serious privacy infringement and can be justified only in extreme cases. Information can be kept only to safeguard “the essential functions of the State and the fundamental interests of society.” Other crimes, even serious crimes like murder, did not meet the threshold.
In an effort at compromise, the Irish Supreme Court had asked if a decision could be limited to future cases to avoid “resultant chaos and damage to the public interest.” But, as with the 2020 decision, the advocate general concluded the court’s findings should be retrospective. That would aid Dwyer, who was given a mandatory life sentence, in his quest to get the telecommunications data tossed out. He had already successfully argued before an appeals court that the evidence shouldn’t be used, but the prosecution has appealed.
Campos Sánchez-Bordona also argues, however, that the court cannot be asked to take on a regulatory role and determine exactly which crimes qualify. He leaves that to the national courts to determine in each case.
The Court of Justice follows the legal reasoning of its advocate generals in the majority of cases. A final ruling is expected early next year.
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