Snooper's Charter Given a Massive Slap by the EU's Highest Court

By James O Malley on at

There's a glimmer of hope for privacy advocates today as the European Court of Justice - the European Union's Highest Court - has ruled that "general and indiscriminate" retention of private emails and browsing data by governments is illegal.

The decision was made just nine days before the data retention requirements in the Investigatory Powers Act (otherwise known as the Snooper's Charter) come into effect, and it could mean that the act could face new challenges and barriers.

Of course, it isn't quite so straightforward: the law being scrutinised by judges was the earlier was the 2014 Data Retention and Investigatory Powers Act, not the IPAct which replaced it - though the principles are the same, so it could mean that the IPAct also gets slapped down in the future.

According to The Guardian, the judgement says:

“The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious. The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.

In short, the ruling says that blanket data retention isn't allowed, any data accessed must be authorised by an independent body, only people suspected in serious crimes may be accessed, and that individuals need to be notified if their data is accessed.

Given this victory, it sounds as though the privacy campaigners who brought the challenge in the first place - the Open Rights Group and Privacy International - are gearing up for a fight. Responding to the judgement the ORG's Jim Killock said:

"The CJEU has sent a clear message to the UK Government: blanket surveillance of our communications is intrusive and unacceptable in a democracy", and added that "The Government knew this judgment was coming but Theresa May was determined to push through her snoopers’ charter regardless. The Government must act quickly to re-write the IPA or be prepared to go to court again."

Now we know what you're thinking (and that's not because we have access to the government's vast electronic surveillance apparatus): But this is the European Court. What about Brexit? We guess it remains to be seen how Brexit could affect this ruling, but one amusing sidebar to the story is that one of the original co-challengers who helped take the law to court was none other than David Davis MP, the Brexit Secretary. We can only imagine how awkward the conversation he'll probably have today with the Prime Minister will be (again, because we don't have access to massive surveillance apparatus...).

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