Was the EU Data Retention Directive ever transcribed into English law?
If so, the Draft Investigatory Powers Bill 2015 would appear to be somewhat moot?
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1 Answer
The Data Retention Directive (DRD) was written in 2006, in 2009 the UK implemented the DRD as the Data Retention Regulations (DRR). However, in 2014 the European Court of Justice (ECJ) rules the DRD was non-compliant with the Charter of Fundamental Rights of the European Union (CFR). The DRD was annulled and so was all implementing legislation. As an aside, countries which were fined for NOT implementing the DRD were reimbursed.
For a report on the whole affair you might like to read this:
Cole, M., & Boehm, F. (2014). Data Retention after the Judgement of the Court of Justice of the European Union.
answered Nov 11, 2015 at 11:59
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Thank you. But the Draft Investigatory Powers Bill 2015 would appear to be very similar to the DRD?– 52d6c6afNov 11, 2015 at 12:10
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I am not completely familiar with the draft of that bill. The ruling of the ECJ in the case of the DRD vs the CFR interpreted (actually, it was based on previous precedents on multiple other cases) that blanket data retention violated articles 7 and 8 of the CFR. So to compare the two in terms of legality that's probably the key point, does the draft bill propose retaining all data (even if it is 'only' metadata of communications) before there is any suspicion? Opinion - it is entirely plausible they are similar and the bill, if enacted, is illegal (and may be challenged later). Nov 11, 2015 at 12:13
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Yes. Metadata for upto 12 months. Onus is on the network providers (ISPs etc) to retain Internet Connection Records (ICRs). Link: gov.uk/government/uploads/system/uploads/attachment_data/file/…– 52d6c6afNov 11, 2015 at 12:15
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In that case, the length of retention is identical to the UK's now annulled DRR. There may also be further differences though. The CFR has an exception (article 52 if I recall correctly) stating if the regulations are proportional and necessary to preserve other's rights then they are not subject to the CFR's regulations. So, perhaps in the new bill there will be regulations to try and except it. Furthermore, another problem with the DRD was that there was no obligation for data to be protected or stored within the EU, perhaps that is also rectified. Nov 11, 2015 at 12:18
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When it comes to EU legislation transcribed into nation-state law. If the original EU legislation is annulled, is the transcription also automatically anulled?– 52d6c6afNov 11, 2015 at 12:24