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25 K.L.J. 1 (2014)

handle is hein.journals/kingsclj25 and id is 1 raw text is: DOI: http://dx.doi.org/10.5235/09615768.25.1.1

(12 DECEMBER 2013)
Is it lawful for the European Union to require telecommunications companies to retain
meta-data on every telephone and internet user across Europe? This is the question
before the Court of Justice of the European Union in Digital Rights Ireland Ltd and Sei-
tlinger and others-preliminary references to the Court from Ireland and Austria. As
telecommunications data surveillance is a key example of counter-terrorism after 11
September 2001, the litigation before the Court of Justice has the potential to shape a
broader debate on surveillance in Europe. Although the Court has not, at the time of
writing, given judgment, Advocate General Villal6n has given an Opinion that merits
reporting in its own right.
The Opinion focuses on the right to privacy and states that Articles 7 and 8 of the EU
Charter of Fundamental Rights together establish a'right to respect for private life with
regard to the processing of personal data'. As a result, it is through the lens of Article 7 of
the Charter that the Advocate General chooses to examine the Directive (paras 62-67).
The Opinion notes that the Directive is a'particularly serious interference with the right
to privacy'. Even though the Directive requires the retention of meta-data only, it 'con-
stitutes a permanent threat throughout the data retention period to the right of citizens
of the Union to confidentiality in their private lives'. The threat arises because meta-data
alone is sufficient to determine much of the content of telecommunications use and so
to create 'a complete and accurate picture of [a person's] private identity'. The Opinion
notes the danger of misuses of data that may be'unlawful ... or even malicious, and that
the risks may be heightened because 'the data are not retained by the public authorities
themselves' (paras 70-76). The Advocate General proceeds to focus on three questions:
proportionality under Article 5(4) EU, quality of law under Article 52(1) of the Charter,
and proportionality under Article 52(1) of the Charter.
Proportionality under Article 5(4) EU
The Opinion strikes a distinction between review of proportionality under Article 5(4)
EU and review of proportionality for compliance with Article 52(1) of the Charter. The

(2014) 25 KLJ 1-4

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