Dispute over data retention: will the ECJ stick to its strict line?

The German data retention law has been on hold for four years. A decisive process has now entered its final phase at the European Court of Justice. The pressure on the court is great.

Once again the European Court of Justice (ECJ) is negotiating data retention. The judges have already received questions about this general storage of telephone and internet data several times. And in 2014, 2016 and 2020 they decided again and again that data retention, i.e. the general storage of data without cause, is fundamentally prohibited under European law.

This time, however, it is not about French, Belgian or Swedish laws, this time the German data retention is checked. According to the representative of the Federal Network Agency in Luxembourg, this is one of the most cautious rules for storage anyway. E-mails would not be saved at all and, unlike in other EU countries, the data could only be archived for a few weeks under German law, for example via telephone connections or sent WhatsApp messages.

Government representatives from 13 EU countries for storage

For the representative of the complaining Internet provider Spacenet, Matthias Bäcker, no reason to find the German law good. The storage period is not the decisive point. “You have to consider that even if data is stored for a few weeks or a few months, since very meaningful profiles about a person’s social contacts or movements are possible,” he says.

It is precisely this problem that the ban on general data retention should put a stop to, according to Bäcker. “And that is exactly where nothing changes. You would have to limit the storage to a few days at best in order to do something about it.”

The opponents of data retention are in the minority here in the courtroom. The government representatives from 13 other EU countries all argued in favor of the storage. Serious crime in their countries could not be solved if the supreme court of the EU continued to ban data collection.

Irish murderer sues against analysis of his data

In addition, an Irish case is being reviewed at the same time as the German regulation; a terrible murder case that could only be solved through phone data. The murderer wants to be released and argues that the data on his cell phones should not have been saved and analyzed.

“The Irish case is, of course, terrible. Personally, I have very little desire to contribute to this person being released from prison,” says Baker. “I looked at it, it’s one of the most horrific homicides I’ve ever read about.”

As a critic of data retention, Matthias Bäcker knows that he has a hard time with his arguments in bloodthirsty cases. Everyone wants the criminals to be caught and put behind bars.

For him it is crucial: “You never get one hundred percent of the data anyway. If at all, then in a completely dystopian science fiction-fully monitored society, where everyone is watched all the time.” And there you have to make a balance. “In my opinion, this balancing act is based on the fact that there must be a limit to state surveillance.”

Political pressure could affect the court

The judgment of the European Court of Justice will come in a few weeks at the earliest. The German judge Thomas von Danwitz once again asked very critical questions, and above all wanted to know whether the so-called Quick Freeze Plus, i.e. immediate saving of all data immediately after a crime, could also help.

If the judges stick to their line, that means that the German data retention, which has been put on hold in recent years because of the European Court of Justice, will not come in the future either. However, due to the great pressure from the member states, it is conceivable that the court will allow more exceptions. Which would mean that certain connection data can be recorded to a certain extent.