Is Europe Fracturing With Respect To Respect For Privacy?

Last decade, all of Europe was marching in lockstep toward surveillance nightmare societies. This decade, that has changed, and some states in Europe (Germany et al) are choosing to restore civil rights whereas others (United Kingdom et al) press on toward Big Brother and beyond. This is bound for a showdown a few years out.

For a while after September 11, 2001, everything was crazy. Just two years prior, a high-profile report about a domestic spying scandal in a European country had concluded that “even a small scribbled note in the margins of a personal file, a note that is never ever used for anything at all, is still an invasion of privacy”. After 2001, the floodgates opened and there was no end to the means that were justified by the ends.

If a politician had suggested putting governmental tracking devices on all citizens in 1999, their career would be over in ten seconds. After 2001, this became a real thing, known as the Data Retention Directive. It was approved by the European Parliament on December 14, 2004, and was in effect until April 8, 2014, when the European Court of Justice not only said that the Data Retention Directive was no longer in effect, but that it was so egregious, that it had never been in effect. The Court changed the laws and restored fundamental rights retroactively.

For a few years between 2001 and about 2008, it seemed like anything went. There was no invasion crazy enough if it just “kept people safe”.

However, this governmental tracking of citizens was challenged in various European states, even before it arrived at the European Court of Justice (ECJ), the European equivalent of a Supreme Court. The ECJ arrived at the verdict on April 8 of this year that the Data Retention Directive is so completely invalid that it ceased to exist as a whole, not just in part.

Early 2010, when the data-retention-type tracking should have been implemented by all countries in Europe since several years back, nine states out of Europe’s 27 (now 28) were either still refusing or had implemented it and had had a national Supreme Court strike it down. A full third were not complying.

The problem with Data Retention as such is that it treats everybody as criminals. Specifically, it invades privacy before any individual suspicion of a crime has taken place, for everybody, in the event that such suspicion should appear later. The criticism has not concerned law enforcement’s ability to track people who are suspected of crimes. The criticism has concerned law enforcement’s ability to track people who are not suspected of crimes. There is a very fundamental difference, and the European Court of Justice highlighted this exact point: that the very core basis of Data Retention, collecting data in bulk indiscriminately, is unacceptable.

Here’s where we see Europe’s strong states starting to pull in different directions.

Around 2006, it was just a race to the bottom. Not anymore. Germany was one of the first states in Europe to challenge Data Retention – more accurately described as “Total Communications Logging Combined With Physical Tracking Too” – at the Supreme Court level, and its court struck it down with a Hammer of Fury, much thanks to excellent footwork of an activist group known as AK Vorrat (short for approximately “Workgroup on Retention”). Following the ECJ’s ruling, ministers in Germany have confirmed that data retention is now stone dead as a concept. Other countries, like Austria, are following the same line.

On the other end of the spectrum, you find countries like the United Kingdom, described as an “endemic surveillance state” – the lowest possible ranking – by Privacy International. Right now, there is a legislative initiative to reinstate all of this citizen tracking and communications logging, regardless of the verdict in the ECJ, but do it all over as a national initiative. Basically, ignoring everything the ECJ said, and also pretending that it’s a good idea to treat all your citizens as suspects at all times. Other countries, like Sweden and Denmark, are following that line too.

Last decade, all states in Europe were marching in lockstep to abolish fundamental rights. All of a sudden, there is a clear fracturing among European states that will come to a showdown over fundamental rights as such. In such a showdown, there won’t be anywhere to hide for the politicians who have pressed for a Big Brother society, which is fundamentally a good – even if slow – development.

It’s always good when there are different voices saying different things. It’s then and only then that the bad, horrible, and egregious ideas can be seen for what they are.

Privacy remains your own responsibility.