By Diego Naranjo

On 30 January 2020, the European Court of Human Rights (ECtHR) issued its judgment on the Breyer VS Germany case. The case was brought by Patrick Breyer (currently a Member of the European Parliament, MEP) and Jonas Breyer (herewith “the applicants”), who complained about the obligation introduced by the Telecommunications Act in Germany to register all customers of pre-paid SIM cards. Similar obligations have been imposed in Romania and elsewhere. In total, there are 15 Council of Europe (CoE) Member States requiring subscriber registration of pre-paid SIM customers, versus 32 that do not have such laws. The applicants claimed a violation of Articles 8 and 10 of the European Convention of Human Rights – right to privacy and freedom of expression, respectively.

Indiscriminate collection of personal data? This time it is ruled legal.

According to the Court, the scope of the applicants’ complaint was not sufficiently grounded regarding freedom of expression and, therefore, analysed the application solely on a potential violation of the right to private life. The Court, by six votes to one, declared that there was no violation of the right to private life. According to the majority of the Court, even though there was a clear interference with the right to private life, the interference was legitimate because of reasons of public safety and prevention of disorder or crime. It was also necessary in a democratic society because it “strongly simplifies and accelerates investigation by law-enforcement agencies” and it can “contribute” to more “effective law enforcement”. Furthermore, it added the data stored and the interference deriving from it was “while not trivial, of a rather limited nature”.

But is efficiency the right approach? In the recent Advocate General (AG) Opinion on four data retention cases before the Court of Justice of the European Union (CJEU), the AG points out that the argument of efficiency cannot lead to watering democracy and that the fight crime (or terrorism in that case) cannot be analysed just in terms of “efficiency”. Indeed, installing CCTV cameras in every room in every house in order to prevent violence against women may be very “efficient”, but efficiency cannot be the ultimate reason (or even a legal basis) to implement any measures we could imagine.

Dissenting Opinion: Sensitive data and lack of effective safeguards

Fortunately, not all judges agreed. The dissenting Opinion of judge Carlo Ranzoni raises relevant questions and arguments which could well lead to a referral of the case to the Grand Chamber. In his dissenting Opinion, Ranzoni argues that he found a violation of Article 8 for various reasons. First, in the case in question, the measures are not confined to the fight against terrorism or other serious crimes (and even when investigating serious crimes, not all measures are justified). Ranzoni also argues that, even though the information stored was not sensitive in itself, the majority of the Court overlooked the possibilities of the “identification of the parties to every telephone call or message exchange and the attribution of possibly sensitive information to an identifiable person”, which in his opinion makes it comparable to similar interferences in the right to private life, as it did in Benedik v. Slovenia, which were not described then as of a “rather limited nature” by the ECtHR (para. 5 of the dissenting Opinion).

Ranzoni further suggests that the law in question allows for the storage of (and access to) data of all SIM card subscribers, without a link to the investigation of any serious crime, for a long period of time. This is a serious interference, and not a light one. However, the “crux of the case” is, according to Ranzoni, the analysis of the quality of the safeguards and how effectively they can prevent abuses. According to him, supervising authorities do not have real capacity to investigate possible abuses, because as the Constitutional Court itself pointed out, “the retrieving authority does not have to give reasons for its request”, and therefore the Federal Network Agency (that is in charge of the retrieval of data of phone users from companies for requesting authorities) would not be able to analyse if the request is admissible (para. 22). Therefore, effective review and supervision of retrieval requests by a judicial or otherwise independent authority are nonexistent. Finally, according to Ranzoni, the vast majority of victims of the interference “are left without any possibility of review” since “it appears unrealistic [for Data Protection Authorities] to review some 35 million data sets consulted by a wide range of different authorities” (para. 25 of the dissenting Opinion).

What next?

The applicants can still apply for a referral of the case to the Grand Chamber that could still overturn this judgment. The dissenting opinion brings strong arguments justifying such a referral. In the meantime, the pending cases Privacy International, C-623/17 and Ordre des barreaux francophones et germanophone et al. C-520/18 are also awaiting a judgment. If the CJEU judgment follows the AG Opinion, the obligation on private companies to perform mass blanket data retention of communications data would be considered once again illegal. If that happens in the CJEU, some of the arguments put forward by the majority of judges in the present ECtHR Breyer case (such as the “efficiency” for law enforcement argument) may help the applicants to overturn the arguments of the majority in this case.

Judgment: Case Breyer v. Germany
http://hudoc.echr.coe.int/eng?i=001-200442

Data retention: “National security” is not a blank cheque (29.01.2020)
https://edri.org/data-retention-national-security-is-not-a-blank-cheque/

AG’s Opinion: Mass retention of data incompatible with EU law (29.01.2020)
https://edri.org/ag-opinion-mass-retention-of-data-incompatible-with-eu-law/

(Contribution by Diego Naranjo, EDRi)