Europe's top court says UK surveillance rules are unconstitutional

Last July, the European Court of Jutice's Advocate General ruled that the UK's mass surveillance regime was unconstitutional, triggering an appeal to the ECJ itself, which has affirmed that under European law, governments cannot order retention of all communications data; they must inform subjects after surveillance has concluded; must only engage in mass surveillance in the pursuit of serious crime; and must get independent, judicial authorization.

The case was brought by MPs Tom Watson and David Davis, with support from the UK Open Rights Group, Privacy International, Liberty and the Law Society.

The ruling directly affects the cornerstone of the Snoopers Charter, the most extreme surveillance law ever passed by a "democratic" nation. It's unclear what effect the ruling will have, as a speedy Brexit will make ECJ rulings irrelevant in the UK.

1. Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication.

This will come as a shocker to the UK government, which could be forgiven for safely assuming that at least the basic principles of retention would be accepted by the CJEU, given the opinion of the Advocate General and the views of UK courts.

The UK has pioneered population level data retention and driven the adoption of the original EU Data Retention Directive after the London bombings in 2005, and will now be forced to rethink its approach.

EU Court slams UK data retention surveillance regime [Open Rights Group]

EU's highest court delivers blow to UK snooper's charter [Owen Bowcott/The Guardian]

(Image: European Court of Justice - Luxembourg, Cédric Puisney, CC-BY)

Notable Replies

  1. daneel says:

    I formerly liked this aspect of David Davis. Shame about his moronic Brexiteer side.

    I guess he's like the UK's Rand Paul. Occasionally right, mostly very wrong.

  2. renke says:

    it's even better, the ECJ ruled in the same case that a similar Swedish law is not compatible with European law and this has consequences for all national surveillance laws in EU member countries: The UK and Swedish government argued that the local laws are off-limits for the EU (and the court), but the judges told them otherwise.

    Let's see if the German data retention law (passed last December, will force all ISPs to store data not later than June 2017) survives this.

  3. And what about tom watson? The thorn in the side of gov surveillance for years and copyfighter extraordinaire now strangely silent on this... oh yeah, he was made deputy labour leader. A choice quote from him in that guardian article -

    At a time when we face a real and ever-present terrorist threat, the security forces may require access to personal information none of us would normally hand over. That’s why it’s absolutely vital that proper safeguards are put in place to ensure this power is not abused, as it has been in the recent past.

    Most of us can accept that our privacy may occasionally be compromised in the interests of keeping us safe, but no one would consent to giving the police or the government the power to arbitrarily seize our phone records or emails to use as they see fit. It’s for judges, not ministers, to oversee these powers.”

    Emphasis mine and utter bullshit. What safeguards, tom? This law is a rubber stamping exercise for judges and nothing more. No, I do NOT consent to my privacy being compromised for security services to try and consistently fail to stop any terrorist act, and certainly not so that organisations like the god damn gambling commission, food standards agency, charity commission, ambulance service etc. can dip in to my browsing history when they feel like it.

    What about shami chakrabarti? Also gone silent... oh yeah, she was given a life peerage wasn't she. When it came down to it they betrayed their principles for a bit of privilege and power - - when those same MPs were under police surveillance themselves.

    This is great news don't get me wrong but isn't it all for nought seeing as we're soon to be out of the EU? Not that I expect our wonderful authoritarian overlord, teflon theresa, to accept this ruling anyway.

  4. Enjoy your sovereign government making laws without any meddling of stinkin' eurocrats. Looks like a marvelous start so far ...

  5. Lol yeah, that horrible EU, always trying to enforce human rights law, and trade standards. Those villains.

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