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Wednesday, December 28, 2016

CJEU Rejects Mass Surveillance Again in UK Case

On December 21, the Court of Justice of the European Union unequivocally re-affirmed that “general and indiscriminate retention of traffic data and location data” was contrary to EU law, echoing its invalidation of the Data Retention Directive in the 2014 Digital Rights Ireland case.  The current decision, in a case variously referred to as either Tele2 or Watson, arose as a challenge within the UK against the 2014 Data Retention and Investigatory Powers Act (DRIPA), brought by Tom Watson, deputy leader of the Labour Party, amongst others. Since the DRIPA was superseded by the enactment of the 2016 Investigatory Powers Act 2016 last month, and the IPA – dubbed by critics the Snooper’s Charter – gives even wider and more intrusive powers of mass surveillance to the government, the IPA is also likely to be unlawful under EU law.  While the CJEU decision does not directly address the legality of the IPA, it clearly supports legal challenges against it likely to come from privacy groups.

Given Brexit, the new ruling places the UK in a difficult bind at a time when Brexit itself is enormously challenging.  The government can ignore the ruling but thereby risk not obtaining a future adequacy ruling from the European Commission that will be needed to ensure the continuance of data exchanges with the EU, or it can re-open what was a wrenching and divisive debate on the Investigatory Powers Act with a view of bringing it into conformity with EU law. 

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