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Data Retention Directive CLASHES with EU citizens' privacy rights, says top lawman

'Serious interference', claims Court of Justice Advocate General

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A seven-year-old EU directive that requires telecoms outfits to retain details of phone calls and emails - such as traffic and location - clashes with the 28-member bloc's privacy rights for citizens, a Court of Justice Advocate General has said.

Pedro Cruz Villalón believes that the 2006 data retention directive "constitutes a serious interference with the fundamental right of citizens to privacy".

His opinion [PDF] was laid down in Luxembourg this morning in response to proceedings taking place in Ireland's High Court and Austria's Constitutional Court (Verfassungsgerichtshof) where challenges have been mounted against state powers that have, it is alleged, "unlawfully" sat on, processed and gained control of communications data.

Both cases await a preliminary ruling.

The AG's opinion is not binding, but - in most cases - the EU's Court of Justice adopts such viewpoints.

He claimed that the directive was "incompatible" with the Charter of Fundamental Rights because the data retained by ISPs, which are obliged to store traffic and location information on their networks for up to two years, could be abused.

The opinion reads:

[T]he use of those data may make it possible to create a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity.

There is, moreover, an increased risk that the retained data might be used for unlawful purposes which are potentially detrimental to privacy or, more broadly, fraudulent or even malicious. Indeed, the data are not retained by the public authorities, or even under their direct control, but by the providers of electronic communications services themselves.

Nor does the Directive provide that the data must be retained in the territory of a Member State. They can therefore be accumulated at indeterminate locations in cyberspace.

He concluded that the EU should be given time within a "reasonable period" to adopt measures that address the supposed clash with a citizens' privacy rights. ®

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