Data Retention hearing in the European Court of Justice: Mass surveillance endgame in Europe?

Recently, there was a hearing in the European Court of Justice about the overall legality of Data Retention. Little is known about what was said – but we know who spoke. It looks like this could be an endgame to mass surveillance in Europe.

“Data Retention” is the technical term for the government spying on all your communications and movements with the express purpose of being able to use it against you in the future. It is a nasty term in that it sounds technical for something really egregious, similar to “cardiac arrest”, “brake fluid underpressure”, or “legislative excrement”.

And unfortunately, the public tends to yawn at everything that sounds technical, as illustrated by John Oliver on the just as technically-sounding Net Neutrality topic. Which, in turn, is exactly why the authorities make everything that would never be accepted if it was understood sound as technical as possible.

But a set of two rulings in the European Court of Justice – the European equivalent of a Supreme Court – may put an end to the practice permanently, ending the era of mass surveillance in Europe and reinstating the presumption of innocence. Well, ending the era of overt mass surveillance, at least: there’s still the NSA and accomplices to take care of. But one step at a time.

One of these rulings, outlawing mass surveillance at the European level, is already done. What remains is to outlaw the exact same thing again at the state (country) level.

The backstory: Data Retention was an abomination that was rushed through in Europe in the wake of the 2004 terror attacks in Madrid. Even then, such invasive mass surveillance would never have been accepted by the national parliaments of Europe; the notorious surveillance hawks who wanted it at any cost – the Justice Ministers of four particular European countries: Sweden, Ireland, France, and the UK – were circumventing and blindsiding their national parliaments to create the mass surveillance construct at the European level, to politically force it onto the politicians at the national level.

The plan succeeded, and the European Parliament adopted the unprecedented directive, where everybody would be under constant surveillance as if already suspected of a crime, on December 14, 2005. At this point, the national governments of Europe did a one-eighty turnaround: with the convenient excuse of “we have to do this” in their pocket, the mass surveillance was rolled out in two-thirds of the European countries. (One third – nine out of 27 – still blankly refused or had the surveillance struck down by courts; all credit where credit is due.)

What’s remarkable, though, is that when the national “data retention” laws were created in response to this European directive of existence of such laws, those two-thirds of European governments – with the excuse of “we must” – went above and beyond the mandated minimum in their respective national surveillance. Thus, all excuses of “we’re forced to do this” rang incredibly hollow, when accompanied with the action of “given the chance, we’re doing this surveillance and even more”.

It’s important to realize that the European directive adopted in 2005 – the Data Retention Directive – mandated the existence of such national surveillance mechanisms. Essentially, it flipped the concept of surveillance-without-suspicion from “absolutely forbidden” to “mandatory”. While there were many smokescreens attempted – in particular along the lines of “no, it’s not governmental surveillance because the government is mandating the telecoms to do the actual surveillance on behalf of the government” (yes!), at the end of the day, it is – and was – inexcusable mass surveillance.

So said also the European Court of Justice on April 8, 2014. The directive was completely inexcusable and a wholesale violation of fundamental rights the European Union were under obligation to uphold, according to the ruling. The Court didn’t just settle for canceling the directive from that point on; the Court struck it down retroactively, ruling that it had never been in effect.

Today’s situation: So the directive forcing national governments and parliaments to have this mass surveillance is gone. Remarkably, they’re now not removing the invasive and inexcusable mass surveillance that they once lamented they were under duress to implement. Instead, they seem rather fine with it – at least, the about two-thirds of European states that have it.

There’s an important nuance here. At present, there’s no Europe-level directive or ruling requiring European states (yes, they’re actually called “Member States” in the European Union) to have this data retention. But there’s also no legislative directive or judicial ruling forbidding it, even if the current mass surveillance was implemented under false pretenses. Therefore, we’re currently in a situation where it’s up to the individual states to have data retention laws or not have data retention laws, until somebody says differently.

That’s exactly what is happening: somebody may be about to forbid those laws at the state level as well. As the European Court of Justice has named this kind of mass surveillance the judicial equivalent of “horseshit of the highest order”, it can be assumed to say so no matter what kind of related case is brought before it. But it cannot rule on cases not yet brought before it. The only thing challenged so far was the European-level directive.

The next thing being challenged are therefore the individual-state Data Retention laws that were gleefully implemented under false pretenses. Specifically, the British and Swedish data retention laws are currently being challenged. On April 12, there was a large hearing about this challenge in the European Court of Justice. We haven’t heard anything what was said in the actual hearing, but we do know that twelve states presented their case, indicating a huge interest in the challenge.

What’s next: On July 19, the European Court of Justice will present its preliminary finding. It does this in the shape of an Advocate General issuing a recommendation to the Court for a final ruling, which the Court usually – but not always – follows. The actual ruling typically follows about six months after the Advocate General’s recommendation. If this ruling says that state-level mass surveillance is as unacceptable as Europe-level mass surveillance, then that could actually be the beginning of the end of it. This could actually be the mass surveillance endgame in Europe.

We can hope. Courts have still had the most sense in this whole mass surveillance hysteria.

Meanwhile, privacy remains your own responsibility.