By Iuridicum Remedium

Czech EDRi member Iuridicum Remedium (IuRe) has fought for 14 years against Czech implementation of the controversial EU data retention Directive which was declared invalid by the Court of Justice of the European Union (CJEU). After years of campaigning and many hard legislative battles, the fight has finally come to an end: on 22 May 2019, the Czech Constitutional Court rejected IuRe’s proposal to declare the Czech data retention law unconstitutional. The court ended up rejecting the claim, despite it being supported by 58 deputies of the parliament across the political spectrum.

In the Czech Republic, data retention legislation was first adopted in 2005. In March 2011, the Constitutional Court upheld first IuRe’s complaint on original data retention legislation and canceled it. In 2012, however, a new legal framework was adopted to implement the EU Data Retention Directive – that the CJEU found to contravene European law in Digital Rights Ireland case in 2014, and to comply with the Constitutional Court’s decision. This new legislation contained still problematic general and indiscriminate data retention and a number of sub-problems. Therefore, even in the light of CJEU’s decisions, IuRe decided to prepare a new constitutional complaint.

IuRe originally submitted a complaint to challenge the very principle of bulk data retention as massive collection and storage of data of people, without any link to the individual suspicion in criminal activities, extraordinary events, or terrorist threats. The CJEU already declared this general and indiscriminate data retention principle inadmissible in two of its decisions (Digital Rights Ireland and Tele2). Although the Czech Constitutional Court refers to both judgments several times, their conclusions – especially when it comes to analyse the foundations of why data retention is not in line with the Czech Constitution – does not deal with it properly.

The Constitutional Court’s main argument to declare data retention constitutional is that as communications increasingly occur in the digital domain, so does crime. Even though this could be true,it is regrettable that the Constitutional Court did not further develop this reasoning and argued why this is in itself a basis for bulk data retention. The Court also ignored that greater use of electronic communication also implies greater interference with privacy that is associated with general data retention.

The Court further argued that personal data, even without an obligation to retain it, are kept in any case for other purposes, such as invoicing for services, answering to claims and behavioral advertising. In the Court’s opinion, the fact that people give operators their “consent” to process their personal data reinforces the argument to claim that data retention is legal and acceptable. Unfortunately, the Constitutional Court does not take into consideration that the volume, retention period and sensitivity of personal data held by operators for other purposes is quite different from the obligatory data retention prescribed by the Czech data retention law. Furthermore, the fact that operators need to keep some data already (for billing purposes for example) shows that police would not be completely left in the dark without a legal obligation to store data.

In addition to the proportionality of data retention, which has not been clarified by the Court, another issue is how “effective” data retention is to reduce crime. Statistics from 2010 to 2014 show that there was no significant increase in crime or reduction of the crime detection in the Czech Republic after the Constitutional Court abolished the obligation to retain data in 2011. Police statistics presented to the Court that data retention is not helping to combat crime in general, nor facilitating investigation of serious crimes (such as murders) or other types of crimes (such as frauds or hacking). In arguments submitted by police representatives and by the Ministry of the Interior, some examples of individual cases where the stored data helped (or hampered an investigation when missing) were repeatedly mentioned. However, it has not been proven by any evidence shown to the Court that general and indiscriminate data retention would improve the ability of the police to investigate crimes.

The Court also did not annul the partially problematic parts of the legislation, such as the data retention period (six months), the volume of data to be retained, or too broad range of criminal cases where data may be required. Furthermore, the Court has not remedied the provisions of the Police Act that allow data to be requested without court authorisation in cases of search for wanted or missing persons or the fight against terrorism.

In its decision, the Constitutional Court acknowledges that stored data are very sensitive and that in some cases the sensitivity of so-called “metadata” may even be greater than the retention of the content of the communications. Thus, the retention of communications data represents a significant threat to individuals’ privacy. Despite all of this, the Court discarded IuRE’s claim to declare data retention law unconstitutional.

IuRe disagrees with the outcome of this procedure in which the Court has come to a conclusion on the constitutional conformity of the existing Czech data retention legislation. Considering the wide support for the complaint, IuRe will work on getting at least a part of existing arrangements changed by legislative amendments. In addition to this, we will consider the possibility for the EC to launch infringing proceedings or initiate other judicial cases, since we strongly believe that the existing bulk data retention of communications data in Czech law still contravenes the aforementioned CJEU decisions on mass data retention.

Czech constitutional decision (only in Czech)
https://www.usoud.cz/fileadmin/user_upload/Tiskova_mluvci/Publikovane_nalezy/2019/Pl._US_45_17_vcetne_disentu.pdf

Proposal to revoke data retention filed with the Czech Court (10.01.2018)
https://edri.org/proposal-to-revoke-data-retention-filed-with-the-czech-court/

(Contribution by Jan Vobořil, EDRi member Iuridicum Remedium, Czech Republic)