The European Court of Justice has said that phone and email data should only be kept if it is to be used to fight “serious” crime.
At this stage the ruling from ECJ's advocate general, Henrik Saugmandsgaard Oe, is preliminary but is likely to be followed by a full ruling from the Court, the BBC reported. The case came after a legal challenge from UK MPs over the legality of the Data Retention and Investigatory Powers Act (DRIPA), which governed what data GCHQ was allowed to collect.
Under DRIPA’s rules, GCHQ and other public bodies were able to collect information about anyone who had been contacted by a suspect. The Act was rushed through parliament in July 2014 by prime minister Theresa May, who was Home Secretary at the time.
The challenge was launched by conservative MP David Davis and Labour’s Tom Watson. When UK courts ruled DRIPA illegal, the government took its case to the European Court of Justice.
Now, in his ruling Saugmandsgaard Oe, has said that certain data retention may be acceptable in serious cases.
“The general obligation to retain data must be strictly necessary to the fight against serious crime. Solely the fight against serious crime is an objective in the general interest that is capable of justifying a general obligation to retain data, whereas combating ordinary offences and the smooth conduct of proceedings other than criminal proceedings are not,” he said, according to the Guardian.
Tom Watson, now Labour’s deputy leader, said: “The opinion makes it clear that information including browsing history and phone data should not be made available to the security services and other state bodies without independent authorisation. The security services have an important job to do, but judicial oversight is vital if we are to maintain the right balance between civil liberties and state power.”
Caroline Wilson Palow, a lawyer with the campaign group Privacy International, told the Guardian that the ruling is a blow to the government’s attempts to push through the investigatory powers bill (also knows as the snoopers’ charter), to replace DRIPA.
“The bulk powers—what we would call mass surveillance powers—embedded throughout the IPBill go far beyond tackling serious crime. They would give a range of public bodies, not just the police and intelligence agencies, the power to access the personal data of innocent people, often without any form of warrant,” she said.
“The advocate general’s opinion supports our calls for much stricter safeguards and oversight to protect us from serious violations of our privacy—including that all access to our data, including communications data, must be authorised by an independent authority such as a judge,” Palow added.
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