Frank Verbruggen & Sofie Royer - Reconsidering the blanket-data-retention-taboo, for human rights’ sake?
Reconsidering the blanket-data-retention-taboo, for human rights’ sake?
Belgian Constitutional Court offers CJEU chance to explain its puzzling Tele2 Sverige AB-decision
Compulsory retention, by ICT-providers, of all non-content user and traffic data, to ensure that that data will be available for subsequent use by law enforcement or intelligence, has been a controversial issue in the EU for several years now. On 19 July 2018 the Belgian Constitutional Court requested a preliminary ruling from the CJEU. Basically, it asks the EU Court to further clarify its earlier case law. The Belgian constitutional judges indicate that they find some aspects of the CJEU’s previous decisions puzzling and they also offer a new angle by explicitly linking the matter to the positive obligations of member states under the European Convention on Human Rights. The implied suggestion seems that the CJEU did not give those obligations enough weight when it found blanket data retention obligations disproportionate. Could this and other considerations push the CJEU to adjust its position as it continues to search for a legal regime that finds the right balance between data protection with law enforcement and intelligence interests?