European Court invalidates Data Retention Directive, says mass surveillance of metadata interferes with right to privacy

The ruling today from the European Court of Justice, invalidating the European Union’s 2006 Data Retention Directive policy, was strong and unequivocal: the right to privacy provides a fundamental barrier between the individual and powerful institutions, and laws allowing for indiscriminate, blanket retention on this scale are completely unacceptable.

As the Court states, it is not, and never was, proportionate to spy on the entire population of Europe. The types of data retained under this hastily-enacted Directive are incredibly revealing about our lives, including our daily activities and whom we have relationships with. It is right and overdue that this terrible directive was struck down.

What the Court said today is similar to arguments privacy advocates have said for some time. The mass collection of metadata is an interference with the right to privacy, and access to this data cannot be justified under vague references to combating serious crimes or terrorism. If access to this sensitive data is granted, such access must be subject to prior review "carried out by a court or by an independent administrative body."

Perhaps most significantly, this ruling not only demolishes communications data surveillance laws across Europe, but sets a precedent for the world. The widespread and indiscriminate collection of information has been, and always will be bad law, inconsistent with human rights and democratic values.

What the Snowden revelations have showed us over the past year is that the international surveillance apparatus set up by intelligence agencies is in direct conflict with human rights. If the Data Retention Directive fails to meet the requirements of human rights law, then the mass surveillance programs operated by the US and UK governments must equally be in conflict with the right to privacy. This decision is a turning of the tide and suggests that the British Government’s position on the legitimacy of its surveillance operations is losing favour.

As the court confirms, the right to privacy is undeniably important and must be protected fiercely. As policymakers now look to realign communications surveillance laws to protect human rights, we encourage them to look to the International Principles on the Application of Human Rights to Communications Surveillance, endorsed by over 400 civil society groups, over 50 experts and academics, and many elected officials and even political parties.

Now is the time to get these 13 Principles into law. When bad law is reversed, civil society and lawmakers have a unique opportunity to right the wrongs, and we must push to enact a legal framework that upholds our cherished right to privacy.