Data Store and Spying Laws Found Illegal By EU Court

WillAffleckUW writes: The EU High Court found the United Kingdom's data retention (and subsequent storage and analysis) and surveillance laws to be illegal throughout the EU, which subsequently would be an argument in courts in Australia and Canada against their own spy laws. This effectively brings back the rule of law that all EU citizens have a right to privacy that is at the Bill of Rights level, not an easily short-circuited legal basis.

"The judges identified two key problems with the law: that it does not provide for independent court or judicial scrutiny to ensure that only data deemed 'strictly necessary' is examined; and that there is no definition of what constitutes 'serious offenses' in relation to which material can be investigated." It is uncertain that this would apply to U.S. spy laws, as a right of privacy is only inferred by U.S. high courts and is not written into constitutions as it is in the EU, Australia, New Zealand and Canada.

Comments

Re:A glimmer of hope

[s0litaire]

And is the main reason Westminster wants to get the UK out of the ECHR so it can make laws like this legal.

not an EU court

[close_wait]

This wasn't an EU court. It was the UK High Court, which based it's ruling on the UK Human Rights Act, which is a UK act of parliament which enshrines the European Convention on Human Rights (a treaty which pre-dates the EU and the EC) into UK law. (Where "UK" kind of excludes Scotland. IANAL, let alone a constitutional one).

Fourth Amendment

[inglorion_on_the_net]

a right of privacy is only inferred by U.S. high courts and is not written into constitutions

You mean other than:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

?

Re:Fourth Amendment

[PPH]

Well yes. But this is a protection against government snooping. It's my understanding that the EU right extend to protection against private entities spying. Like what Google/Facebook may or may not collect.

In the USA, the loophole has been to declare all metadata to be the sole property of the telecom. So it's not individuals' data the government is collecting. And the telecoms are very cooperative.

Re:Fourth Amendment

[inglorion_on_the_net]

Well yes. But this is a protection against government snooping. It's my understanding that the EU right extend to protection against private entities spying. Like what Google/Facebook may or may not collect.

Right. In general, people in the EU worry a lot more than Americans about what corporations do with their data, and a lot less about what the government does with their data.

The article, though, is about government surveillance of its citizens, and suggests that there is no protection against this written in the US constitution, which it seems to me there actually is. Of course, as you and others have pointed out, that doesn't mean the data isn't being collected and retained anyway, but I do think there is actually a privacy law on the books, right there in the US constitution.

Worthless judgement

[IamTheRealMike]

This isn't going to make any difference.

The EU "Right to Privacy" and indeed all the human rights encoded in the relevant document are so riddled with exceptions that you can drive a bus through them. The fact that any government lost at all is amazing and surely the result of incompetent lawyering. From the text:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The national security exception by itself seems enough to allow nearly anything, but then they add public safety and economic well being on top! In fact every reason a government might have for engaging in surveillance is covered, which cannot be an accident.

But anyway, GCHQ is not about to suddenly discover that it cares about these things. It's been obvious since the start that the 5 Eyes agencies perceive themselves as being entirely outside ordinary democratic constraints, unfortunately, that perception is largely true as senior ministers think real life is like an episode of 24 and gives them essentially blanket immunity to do whatever they like.

The EU loves its loopholes...

[Karmashock]

Every move I've ever seen by the EU has had a couple layers to it. I wouldn't be surprised if there is an exception in it that allows business as usual.

I'm not claiming the US is superior... we love our loopholes as well. In the most absurd cases the loophole is merely a lack of enforcement.

We have that with quite a few laws where things are completely illegal but... if it isn't enforced then its not really against the law unless the government makes an exception randomly at any time it chooses.

And in the most pathetic incidents... say government corruption... they simply refuse to prosecute themselves. Only they are allowed to bring the case... and they simply decline to do so. Boom. Blank check to do what they want.

When you get into spying and stuff... how do you even know what they're doing?

The Europeans knew the NSA was operating in their countries because part of the deal was that the NSA would pass collected intelligence on to them. THus they got the benefit of spying on their people while not technically personally doing it. The Americans would do it for them.... and they'd get plausible deniability.

That was the old arrangement pre-Snowden.

Now of course the politicians are all pretending to have not known.

When that cools down... I doubt anything will change.

Outside of little communities like this one... no one cares.

Re:A glimmer of hope

[Demonoid-Penguin]

Perhaps everything is not lost, it seems the EU high court still respects basic human rights.

News to me that the "Right of Privacy" is written into the Australian Constitution [reads Constitution again]. Nope - not here. The only "right" is to "free trade between states" - which is bullshit or I'd be able to freely trade between different states.

Order a Penthouse magazine from Melbourne when in Northern Territory? No. Order a radar detector from anywhere in Australia but Western Australia? No. Order tobacco from Queensland when in any other state with paying the local state tax? No.

Perhaps they refer to Australian obligations to recognise International Agreements which we have ratified?

Having read the referenced article I know the summary is bullshit - the source is referring to the Human Rights Act 1998 - an international agreement that our Constitution says takes precedence over Federal law. Given that the main contender to replace our current Prime Minister is a Constitutional Law expert that is even more right-wing than Tony the Abbott I'm not optimistic. Especially given the way immigration camps were moved offshore to avoid having to comply with the same Act.

Re:You think Harper gives a rat's ass?

[Opportunist]

It's what has been dubbed "slicing tactics" around these areas. You continuously push for huge spying bills, which all get shot down, to finally get that smaller one you were actually aiming for passed, which would have no snowball-in-hell chance to pass if people weren't already used to the outrageous demands.

For reference, see pretty much any legislation concerning terrorism or copyright.