In the AG’s view, a data retention obligation is in general compatible with fundamental rights to privacy and the protection of personal data. Such compatibility is ensured only in presence of certain conditions: the interference with the right to privacy has to be prescribed by law, necessary and proportionate. Indeed, Henrik Saugmandsgaard Øe argued that: “I think that general data retention obligations are liable to contribute to the fight against serious crime. It nevertheless remains to be verified whether such obligations are both necessary in order to achieve that objective and proportionate to the pursuit of that objective.” Moreover, national authorities must respect the essence of the Charter of Fundamental Rights.

The opinion follows a preliminary ruling filed by the Swedish Administrative Court of Appeal and the High Court of Justice of UK and Wales following an appeal against  digital rights advocacy and lobbying group Digital Rights of Ireland. 

The Swedish and UK national courts asked the European Court of Justice to establish whether the data retention obligation imposed by national regimes to service providers, is compatible with EU law.

The retention established by national law can concern private phone and internet data, such as location, time and frequency of communications between individuals. According to Deutche Welle, this brings the topic into the territory of mass surveillance, in the post-Snowden world.

Tom Watson, deputy leader of the Labour Party, who presented the complaint against the British Government, welcomed the AG’s opinion. In his view, it proves the unlawfulness of the law that current UK prime minister Theresa May passed when she was home secretary, allowing British authorities to collect huge amounts of data without providing any evidence of criminality. 

The Guardian also reports on the position of the lawyers for the UK government, who defended the data retention law maintaining that “intercepted communications had been at the heart of every terrorist case investigated by police and the security services in recent years.”

The UK governments noted that the AG has simply highlighted the EU provisions but has not provided standards member states have to follow, the Wall Street Journal says. However, the British Parliament is currently considering a bill that would expand the country’s surveillance power. – a bill this opinion might stop, Liberty argues.

An ECJ ruling is likely to follow the AG’s suggestions. However, this is expected to take several months.

By Ilaria Fevola