Data retention: Researchers recognize "Copernican turnaround" at the ECJ

The recent ruling of the European Court of Justice (ECJ), according to which the logging of IP addresses without suspicion for the prosecution of even minor crimes may be legally permissible without a judge's authorization, has caused astonishment among scientists. The ruling "can certainly be seen as a Copernican turnaround by the ECJ in the area of data storage", explains Philipp Hacker, Professor of Law and Ethics of the Digital Society in Frankfurt (Oder), to the Science Media Center (SMC). Unlike previously, the Luxembourg judges no longer classify data retention without cause as a serious interference with fundamental rights in all constellations. The ECJ only set the bar higher for detailed surveillance of individuals.

Hacker explains the change of course by, among other things, the fact that "in some cases other judges were involved" in the decision made by the full court than in previous, significantly more restrictive rulings. In particular, the rapporteur had changed, from the German judge Thomas von Danwitz to his Czech colleague Alexandra Prechal. In addition, a lot has happened in recent years. "The staying power of politics since 2006 has paid off," says Bremen professor of IT security law Dennis-Kenji Kipker. "People keep trying to politically enforce a procedure that is more than questionable from a constitutional point of view until the highest courts change their rulings at some point."

"Where there's a trough, the pigs gather"

In general, Kipker also speaks of a "clear turnaround in the case law of digital fundamental rights protection" at the ECJ. There are signs that data retention "could become the rule rather than the exception, even for the prosecution of copyright infringements". The information law expert criticizes as "downright absurd" the assertion in the ruling that "data separation would make it impossible to draw conclusions about private life". MEP Patrick Breyer (Pirate Party) takes a similar view: "Where there's a trough, the pigs gather", he warns against "limitless data greed". Storing IP addresses in advance would be the same as if every citizen "had a visible license plate hung around their neck and this was noted at every turn". This would correspond to a "total recording of daily life", although "99.99 percent of this data would be completely useless".

In light of the ruling, Federal Minister of the Interior Nancy Faeser (SPD) has already reiterated her call for the retention of IP addresses. "Not everything that is legal is also useful," counters Erik Tuchtfeld, Co-Chairman of the SPD-affiliated network policy association D64. It is a good thing that the German government has said goodbye to instruments of mass surveillance with its compromise. It should continue to focus on measures that protect fundamental rights, such as quick freeze and login trap. The German Bar Association (DAV) is also in favor of this: "It would be fatal for the protection of civil rights in the digital space to allow data retention for the purpose of prosecuting any crime, even minor ones." It is questionable whether the "strict separation" between the desired internet identifiers and other user data, which is assumed in the ruling, can actually be implemented. The ruling should therefore "by no means be understood as a carte blanche for mass surveillance of the Internet in Germany".

(anw)