Human Rights in the Digital Age: The European Court of Justice Ruling in the Data Retention Case and its Lessons for Privacy and Surveillance in the U.S.

Abstract

On April 8, 2014 the EU Court of Justice of the (ECJ) delivered a milestone ruling about the protection of human rights in the digital age. In the case of Digital Rights Ireland Ltd v. Minister for Communication et al and Kärtner Landesregierung the ECJ declared the Data Retention Directive – an EU legislative act requiring telecommunications service providers to retain for up to two years all meta-data about emails, text messages and telephone calls of every EU citizen and to make these available to national security agencies for investigatory purposes – to be in violation of the rights to privacy and data protection enshrined in the EU Charter of Fundamental Right. The purpose of this paper is to examine the decision of the ECJ, making it accessible to an international audience. The paper explains the context and the content of the decision, by surveying the EU constitutional framework for privacy and data protection and detailing the legal reasoning of the ECJ. It clarifies how the decision of the ECJ builds on previous national security cases and discusses its implications for the protection of human rights in a developing technological era – both in the EU and globally. As the paper argues, the ruling of the ECJ striking down the Data Retention Directive will profoundly shape the approach of the EU on issues of privacy and data protection. However, as the paper suggests, the ruling of the ECJ may also carry some lessons overseas, and especially in the US. As the US institutions and public debate possible reforms of the US surveillance program, Digital Rights Ireland Ltd v. Minister for Communication et al and Kärtner Landesregierung makes a strong case for strengthening – rather than weakening – privacy protections in light of the greater capacity of governments to use new technology to systematically monitor individuals. And it underlines how the distinction between retention of meta-data by private companies rather than by government agencies does not make a real difference, since it is the retention itself that alters the relationship between citizen and government in a way that is inimical to democratic society. As such, the ECJ ruling provides a model to reaffirm and update privacy rights in the new digital age.