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Transposing the Data Retention Directive in Greece: Lessons from Karlsruhe

Transposing the Data Retention Directive in Greece: Lessons from Karlsruhe. Anna Tsiftsoglou & Spyridon Flogaitis (University of Athens, Greece) 4 th International Conference-Information Law & Ethics Thessaloniki, Greece, May 20-21 st , 2011. What Karlsruhe Said (2010).

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Transposing the Data Retention Directive in Greece: Lessons from Karlsruhe

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  1. Transposing the Data Retention Directive in Greece:Lessons from Karlsruhe Anna Tsiftsoglou & Spyridon Flogaitis (University of Athens, Greece) 4th International Conference-Information Law & Ethics Thessaloniki, Greece, May 20-21st, 2011

  2. What Karlsruhe Said (2010)

  3. 1. The ‘Privacy Test’ • 10GG & ‘informational self-determination’ • 8 EU Charter Fund. Rights/ 8 ECHR (privacy) • Three-level test (legality – legitimacy – proportionality) • Proportionality involves additional safeguards to counterbalance intensity of interference • “Diffuse Threat” – chilling effects • Data Retention useful law enforcement tool (profiling techniques)

  4. Proportionality check • Purpose Limitation • Minimize Scope of Data Processing – use plain and concrete language- enlist specific crimes • High Data Security Standards • No discretion left to operators • Independent Authorities may assume regulatory role • Transparency of Processing • Effective Legal Protection • Judicial Control/ Legal Sanctions/ Liability

  5. Court Assessment • Present structure of provisions lacks the above four standards  dis-proportional • Contrary to 10GG/ extends to traffic data • Dissent (Schluckebier/Eichberger)- • Judicial activism/ changing nature of public safety

  6. 2. Telecom Providers • ‘Guarantors’ of personal data ? • New public-private networks/ data processing models / distributed surveillance • Financial burdens – who pays? • 12GG/ 14GG/ Art1-First Protocol to ECHR • BVerfG says it does not exceed obligations if it is proportional • Market assumes cost shifts it to consumers?

  7. 3. Karlsruhe v Luxembourg

  8. Karlsruhe v. Luxembourg • No referral (267TFEU) to ECJ – no ‘dialogues’ • C-301/07  ECJ confirmed 95EC as proper legal basis for DRD – reversed PNR ruling • Data retention as an ‘internal market affair’ – promoted EU Parliament’s position • Principle of Subsidiarity • Retention & storage  EU law • Access & use national law

  9. Karlsruhe v. Luxembourg • ‘sovereignty’ v ‘integration’-oriented approach • German constitutional identity as upper limit • Institutional balances – international spirit

  10. The Greek Transposition

  11. *Law 3917/2011* • Late transposition – C-211/09 • Traffic & location data treated as elements of ‘intimate communication’ 19Gr.Constitution • Enhanced guarantees- executive law 2225/94 • Additional guarantees provided by new law • Failure to provide effective DP control: • ‘Institutional verbosity’ • Merger of administrative authorities

  12. The ‘Moment of Truth’ for the Data Retention Directive

  13. The EC Evaluation (April 2011) • Judicial Developments • More than 6 national courts have declared national transposing laws unconstitutional since 2008 • Irish Referral to ECJ (2010) – case pending • Regulatory Developments (major deviations) • ‘Data Retention a valuable tool’ (true?) • Commissioner Malmström: “I intend to review the Directive to clarify who is allowed to access the data, the purpose & procedures for accessing it” (Press Release, 18.4.2011)

  14. Lessons from Karlsruhe • Guarantees • Supervision • Sanctions, liability • Proportionality • ‘quality of law’ - Purpose limitation • Assessment tool for anti-terrorist measures • Self-regulation • Inadequate - privacy standards should be imposed

  15. Digital Activism

  16. “Freiheit statt Angst”(Freedom, not Fear) Berlin, October 11th 2008 – approximately 70,000 protesters – biggest privacy event in German history

  17. Patrick Breyer – the brain behind the BVerfG case

  18. Former PhD Student who wrote a thesis on ‘data retention’- His Movement ‘AK Vorrat’ managed to initiate 34,000 constitutional complaints to Karlsruhe- The Biggest in the Court’s History

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