01 February 2007

Privacy: Data Retention Directive Challenged in Ireland

The Data Retention Directive (Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) requires EC member states to oblige telcos, ISPs and others to keep records of communications traffic data for each one of their customers for up to 3 years. As Becky Hogge, Executive Director of the Open Rights Group explained in her article in OpenDemocracy "An Irish challenge to the EU's snooping law", the retention of such data "would be more than enough to create a detailed picture of your colleagues, friends and lovers, your lifestyle, your movements, even your sleeping patterns." The directive was adopted after 7/7 and Madrid as a manoeuvre in the so-called "war on terrorism" but, as Ms Hogge observes, "sloppy wording" means that it could have much wider uses including, perhaps, investigations on behalf of the music industry to identify peer-to-peer file sharers.

An action challenging the compatibility of the directive with the European Convention of Human Rights and the constitutionality of the implementing legislation in national law has been launched by Digital Rights Ireland, a body dedicated to preserving human and civil rights in the digital age. The claim has been brought against several government departments and the Irish state in the Irish High Court. Copies of the originating process, statement of claim and acknowledgement of service appear on Digital Rights' solicitors' website. The claimant appears to have made a pretty good start as a notice of motion for judgment in default of defence returnable on 17 Feb 2007 and evidence in support also appears on its solicitors' site (see the post for 15 Jan 2007) in the January archive).

The remarkable thing about this case is that it is one of the first attempts in Europe by a campaigning group to use the courts to challenge legislation affecting digital rights on constitutional and Convention grounds. As Ms Hogge puts it:

"Until now, European digital rights activists, if they are to get their voices heard, have had to be content with the more mundane pursuits of lobbying their elected representatives and informing and educating the national press."

In that respect Digital Rights Ireland and perhaps others will follow the lead of the Electronic Frontier Foundation with its long list of victories in the US courts. Although it is not very fashionable to say so, we owe much of our liberty to the Irish as well as the Americans.

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