A bloody nose for Big Brother?
On the ECJ ruling on German data retention
Europe’s highest court has told Germany that it is not allowed to order the mass collection of data on its citizens’ telephone and internet usage, thus hammering the final nail into the coffin of a law passed by Angela Merkel’s government in 2015.
For anyone who has forgotten, long before we were hit by gas shortages, inflation, novel pathogens and lockdowns, we lived in a world that was gripped by fear of online terrorism and cyber crime.
In 2015, the stories that dominated the headlines were radical Islamists who had been radicalized online, or child abusers who distributed their exploitative videos via the internet.
That was the context in which the law on data retention was created. It obliged internet and phone companies to store basic data on all customers such as when, where and with whom they had been in contact. The hope was that the police could make use of this data to connect the dots when investigating online crime.
But historical context is of little importance when judges decide whether a law abides by constitutional rights.
In its ruling last week, the European Court of Justice (ECJ) condemned the law for the “general and indiscriminate retention” of data, something precluded by EU law. The law potentially "allows very precise conclusions to be drawn concerning the private lives of the persons whose data are retained... and, in particular, enables a profile of those persons to be established," the ruling noted.
Justice Minister Marco Buschmann, of the liberal Free Democrats, said that it was a "good day for civil rights" and promised to “swiftly and definitively, remove data retention without cause from the law."
What has the reaction been?
Good riddance, writes Sascha Lobo in Der Spiegel. The law was an affront to the liberal principle that “suspicion is needed for the police to be able to look into intimate areas of people's lives.” Moreover, it was useless. Criminals know that what they are doing is illegal, that's why they use the darknet. “And data retention is of no use at all there. Dark web technologies are designed solely to conceal who is connecting to which website.”
Of course it's good that the law was thrown out by the ECJ, writes Heribert Prantel in the Süddeutsche Zeitung. But Germany’s lawmakers will be back again with a new version: they are “junkies” for indiscriminate data retention. That 2015 law came after the ECJ dismissed a similar law from 2010. "Policymakers are already thinking about how to rewrite the law and make it even more 'flawless.' They seem to be really addicted to data retention.”
"This ruling provides no reason to rejoice," writes Reinhard Müller in the Frankfurter Allgemeine Zeitung. While the opponents of data retention act as if it's proof we live in an Orwellian surveillance state, the truth is that police would have only had access to the data under strict legal conditions. In a digital world “the state needs to be able to access data in the case of serious crimes, data which, after all, does not involve the content of the communication.”
An important distinction that seems to get lost in the debate over this issue is that it is not the state that collects the data. Communications companies do so.
Police could only access said data when they suspect a crime has been committed - and only once a judge has been convinced that there is sufficient evidence to justify the intrusion into a suspect’s private affairs.
If that constitutes the death of liberal democracy, then we should presumably abolish searches of private property, too.
The fact remains that in our society people can privately indulge their wildest fetishes on the internet and no state-sanctioned busybody can do anything about it. It sounds to me like liberalism is alive and well.
But when it comes to serious crime, the police need evidence to act. Thankfully, the ECJ didn’t completely reject mass data retention. The ruling expressly allowed for the collection of data on IP addresses.
The Social Democrats will undoubtedly now push for a modification of the law that takes this into account. They'll have to do so against resistance from the Free Democrats, though.