The
European Court of Justice has ruled that the
Data Retention Directive is legal, disappointing privacy
advocates.
The judgement is a sequel to an objection by Ireland and
Slovakia that the grounds on which the directive was based did not
concern the workings of the internal market, but were more properly
related to the investigation, detection and prosecution of
crime.
Privacy advocates and many internet service providers were
hoping the court would annul the directive, which the European
Council passed on 21 February 2006.
The court said early on that the Irish action related solely to
the choice of legal basis and not to privacy issues.
The court noted that even before the directive, several EU
members has passed laws to get communications service providers to
keep data. These differed substantially, particularly regarding the
type of data retained and the retention periods, the court
said.
The court held that having to keep the data had "significant
economic implications" for service providers as they faced extra
capital operating costs to comply.
"It was entirely foreseeable that member states which did not
yet have such rules would introduce rules which were likely to
accentuate even further the differences between the various
existing national measures," the court said.
These differences would have had a direct impact on the
functioning of the internal market, and that therefore the council
was justified in safeguarding the proper functioning of the
internal market by harmonising the rules.
The court also found that the directive was essentially limited
to the activities of service providers and did not govern access to
data or its use by the police or judicial authorities.
"The measures provided for do not, in themselves, involve
intervention by the police or law enforcement authorities of the
member states," it said. "Those issues, which fall in principle
within the domain covered by police and judicial cooperation in
criminal matters, have been excluded from the provisions of the
directive. The court therefore concludes that the directive relates
predominately to the functioning of the internal market."