18 May 2010

Proportionality overrides Unlimited Surveillance

Katja de Vries / Rocco Bellanova / Paul De Hert

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The Data Retention Directive, demanding the retention of telecommunications data for a period of six months up to two years, was adopted on 15 March 2006. Since then, this seemingly straightforward directive has generated quite an impressive number of court judgments. They range from the European Court of Justice (ECJ) to the administrative (e.g. Germany and Bulgaria) and constitutional courts (e.g. Romania) of some member states.

It is the judgment of the German Constitutional Court, delivered on 2 March 2010, which has particularly caught the attention of commentators: civil society, lawyers, journalists and politicians. In the judgment, the court says ‘No’ to the German implementation laws of the Data Retention Directive.

This paper highlights some of the key features of the ruling and its main similarities and divergences with similar judgments. Given the relevance of the issues at stake, the judgment is then contextualized in the wider framework of EU data processing and protection debates, offering elements of reflection for further discussion.

About the authors: Katja de Vries is a PhD researcher in the interdisciplinary group on Law, Science, Technology and Society (LSTS) at the Vrije University Brussel (VUB); Rocco Bellanova is a researcher at the LSTS-VUB, Paul De Hert is Professor at the faculty of law at VUB.