Court Overturns Dutch Data Retention Law, Privacy More Important

wabrandsma writes According to DutchNews.nl: "Internet providers no longer have to keep their clients phone, internet and email details because privacy is more important, a Dutch court ruled on Wednesday." Digital rights organization Bits of Freedom writes in a blog: "The law's underlying European directive was meant as a tool in the fight against serious crimes. The Dutch law, however, is much more expansive, including everything from terrorism to bike theft. During the hearing, the state's attorneys avowed that the Public Prosecution does not take the law lightly, and would not call on the law to request data in case of a bicycle theft. The judge's response: it doesn't matter if you exploit the possibility or not, the fact that the possibility exists is already reason enough to conclude that the current safeguards are unsatisfactory."

Comments

Re:Also EU law is more important

[mvdwege]

It is in fact a rather surprising decisions, since Dutch judges have no tradition of ruling in 'contra legem' procedures; they are in fact forbidden by the Constitution to do so (article 120 says judges shall not judge the constitutionality of laws and treaties).

Now, the loophole here is that treaties are considered higher law than the Constitution, so judges can rule local laws in violation of a treaty[1]. They don't tend to do that in mere district court though.

Apparently the case made by complainant was compelling enough, and the governments argument weak enough, that a mere district judge felt they could safely make that ruling.

[1] On the gripping hand, the principle of subsidiarity means that if a case is covered by the Constitution as well as a treaty, judges are supposed to use the Constitution as the basis for their decision, once again invoking art. 120. But of course if the Constitution and the treaty align enough, appealing to treaty law wouldn't work anyway.