TechDigits

Tech news
Friday, Feb 23, 2024

Europe’s state of mass surveillance

Europe’s state of mass surveillance

The EU’s top court says mass surveillance is banned. Governments do it anyway.

Jack Murphy* was suspicious. His ex-girlfriend, Eve Doherty, seemed to know a lot about who he was calling.

His suspicions were merited. Doherty had been using her job in the Irish police force to access his phone records, an investigation by the local judiciary revealed. Doherty was disciplined and transferred in 2011.

Three years later, in 2014, the European Court of Justice (CJEU) ruled that the Irish law that forced telcos and internet service providers to hang on to traffic and location data was contrary to EU law, and so was the EU directive it was based on. The data retention regime allowed government agencies to access citizens' data in ways that violated their privacy — like what Doherty was doing when she accessed those phone records of her ex-boyfriend.

And yet, the risk of similar cases — of police officers overstepping their powers to access phone records — still lingers today.

The landmark 2014 ruling was followed by a bevy of subsequent judgments from the EU's highest court that reinforced its message to stop blanket data retention. But it didn't stop Ireland from keeping its mass surveillance of phone and internet data, including who you call and where you are, largely intact.

“In Ireland, we've been in a period of lawlessness, at least since 2001,” said TJ McIntyre, chair of Digital Rights Ireland, the non-profit organization whose legal complaint brought down the EU Data Retention Directive in the landmark 2014 case.

The pattern in Ireland is unsettling. Dublin sets up a data retention regime, the court then kills it after years of slow legal proceedings that go up to the European level, only to see the government reboot a similar regime, with some tweaks, that risks violating the same rights and principles that brought down the earlier one.

Just last month, the Irish justice ministry presented its latest iteration of a data retention bill after the EU’s top court’s latest ruling against the Irish regime in April 2022. But McIntyre argued Dublin’s latest attempt is just as harmful to privacy. It allows data retained for national security reasons to be accessed for criminal investigations, for instance, which he argues runs counter to the court's decision in April.


Cat and mouse


Decision after decision, the European Court of Justice's 27 top judges have fine-tuned their belief that mass retention of phone and internet traffic and location data violates fundamental EU privacy rights.

But many European law enforcement and government officials don't seem to want to listen. They argue that such data retention regimes are vital for crime fighting.

In a series of judgments from 2014 onwards, including most recently in late 2021 and early 2022, the CJEU has mostly sided with privacy groups, arguing that blanket data retention isn’t legal — except in some circumstances, with proper safeguards and if there’s a serious threat to national security.

The CJEU has mostly sided with privacy groups, arguing that blanket data retention isn’t legal


It’s a fight that at times has gotten dirty. The French government at first tried to pressure its court not to follow EU case law, arguing it went against the country’s “constitutional identity.” Paris even mulled seeking changes to the EU’s founding treaties or the Charter of Fundamental Rights, known as the bloc’s primary law, to dodge the EU's top court rulings.

In Denmark, government ministers openly criticized the EU court. “I think that the fundamental problem here is that the Court of Justice of the European Union creates law without democratic legitimacy,” Danish Justice Minister Nick Hækkerup said following a ruling in late 2021. “After all, they are just judges.”

Passions run equally high in the opposing camp.

“Data retention is really what politicized me,” said German Pirate Party MEP Patrick Breyer. “I still think it's really the most privacy-intrusive legislation that the EU has ever enacted because it's about collecting information about the entire population.”


Creeping surveillance


Even when they haven’t been openly hostile to the bloc’s top court, EU capitals have been ruthless in exploiting loopholes in its rulings.

Belgium and Denmark, for instance, are devising schemes that technically collect data in a targeted way rather than in a general way, which is what the court allows. But it’s arguably targeted in name only.

The Belgian proposal for targeting areas where there’s lots of crime sets the bar so low that it covers the whole country. Denmark isn’t much better, its crime level threshold means that close to 70 percent of the country’s population will be covered by its framework.

Governments are also looking to extend these regimes' reach: Belgium's proposal aims to cover messaging apps like WhatsApp and Signal, as well as the traditional telco operators. The plan risks effectively banning privacy-preserving platforms like Signal or Threema by forcing them to store data on users they don't currently collect.

France has tried another way to keep its blanket surveillance intact. Its top administrative court approved the government’s argument that the country is effectively under a constant terrorist threat, meaning that blanket data retention is OK. However there are already questions over whether this is legal, with one former EU judge arguing that the risk of terrorism doesn’t constitute a threat.

This game of cat and mouse has at times become a farce. Denmark’s tweaked data retention regime was in place for a mere six days this year before a fresh ruling from the CJEU rendered it illegal.

“The EU is really having a rule of law problem here, because governments knowingly ignore the case law because they don't like it. And the Commission refuses to enforce it,” said Breyer, the MEP.

Newsletter

Related Articles

TechDigits
0:00
0:00
Close
FTX's Bankman-Fried headed for jail after judge revokes bail
America's First New Nuclear Reactor in Nearly Seven Years Begins Operations
Southeast Asia moves closer to economic unity with new regional payments system
Today Hunter Biden’s best friend and business associate, Devon Archer, testified that Joe Biden met in Georgetown with Russian Moscow Mayor's Wife Yelena Baturina who later paid Hunter Biden $3.5 million in so called “consulting fees”
Google testing journalism AI. We are doing it already 2 years, and without Google biased propoganda and manipulated censorship
Musk announces Twitter name and logo change to X.com
The future of sports
TikTok Takes On Spotify And Apple, Launches Own Music Service
Hacktivist Collective Anonymous Launches 'Project Disclosure' to Unearth Information on UFOs and ETIs
Typo sends millions of US military emails to Russian ally Mali
Server Arrested For Theft After Refusing To Pay A Table's $100 Restaurant Bill When They Dined & Dashed
Democracy not: EU's Digital Commissioner Considers Shutting Down Social Media Platforms Amid Social Unrest
Sarah Silverman and Renowned Authors Lodge Copyright Infringement Case Against OpenAI and Meta
Why Do Tech Executives Support Kennedy Jr.?
The New York Times Announces Closure of its Sports Section in Favor of The Athletic
Florida Attorney General requests Meta CEO's testimony on company's platforms' alleged facilitation of illicit activities
The Poor Man With Money, Mark Zuckerberg, Unveils Twitter Replica with Heavy-Handed Censorship: A New Low in Innovation?
The Double-Edged Sword of AI: AI is linked to layoffs in industry that created it
US Sanctions on China's Chip Industry Backfire, Prompting Self-Inflicted Blowback
Meta Copy Twitter with New App, Threads
BlackRock Bitcoin ETF Application Refiled, Naming Coinbase as ‘Surveillance-Sharing’ Partner
UK Crypto and Stablecoin Regulations Become Law as Royal Assent is Granted
A Delaware city wants to let businesses vote in its elections
Alef Aeronautics Achieves Historic Milestone with Flight Certification for World's First Flying Car
Google Blocked Access to Canadian News in Response to New Legislation
French Politicians Advocate for Pan-European Regulation on Social Media Influencers
Melinda French Gates Advocates for Increased Female Representation in AI to Prevent Bias
Snapchat+ gains 4 million paying subscribers in its first year
Apple Makes History as the First Public Company Valued at $3 Trillion
Elon Musk Implements Twitter Limits to Tackle Data Scraping, but Faces Criticism for Technical Misunderstanding
EU and UK's Slow Electric Vehicle Adoption Raises Questions About the Transition to Green Mobility
Top Companies Express Concerns Over Europe's Proposed AI Law, Citing Competitiveness and Investment Risks
Meta Unveils Insights on AI Usage in Facebook and Instagram, Amid Growing Calls for Transparency
Crypto Scams Against Seniors Soar by 78% in 2022, Experts Urge Vigilance
The End of an Era: National Geographic Dismisses Last of Its Staff Writers
Shield Your Wallet: The Perils of Wireless Credit Card Theft
Harvard Scientist Who Studies Honesty Accused Of Data Fraud, Put On Leave
Putting an End to the Subscription Snare: The Battle Against Unwitting Commitments
The Legal Perils of AI: Lawyer Faces Sanctions for Relying on Fictional Cases Generated by Chatbot
ChatGPT’s "Grandma Exploit": Ingenious Hack Exposes Loophole in AI, Generates Free Software Codes
The Disney Downturn: A Near Billion-Dollar Box Office Blow for the House of Mouse
A Digital Showdown: Canada Challenges Tech Giants with The Online News Act, Meta Strikes Back
Distress in the Depths: Submersible and Passengers Missing in Titanic Wreckage Expedition
Mark Zuckerberg stealing another idea: Twitter
European Union's AI Regulations Risk Self-Sabotage, Cautions smart and brave Venture Capitalist Joe Lonsdale
Nvidia GPUs are so hard to get that rich venture capitalists are buying them for the startups they invest in
Chinese car exports surge
Reddit Blackout: Thousands of Communities Protest "Ludicrous" Pricing Changes
Nvidia Joins Tech Giants as First Chipmaker to Reach $1 Trillion Valuation
AI ‘extinction’ should be same priority as nuclear war – experts
×