Articles for category: Eyes Everywhere: Surveillance and Data Retention under the EU Charter

Anonymity and Surveillance, Creativity and Copyright

The emergence of digital networks over the past decades has presented a problem for copyright exploiters. Thus, they resorted to strategic enforcement targeting individual users. However, the users would often remain anonymous due to the lack of access to traffic data revealing their identity. But the decision in La Quadrature du Net II – permitting retention and disclosure of traffic data for minor offences – has the adverse effect: it incentivises enforcement strategies targeting users and requiring platforms to hand over such data.

18. März 2025

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A Right to Anonymity in the Digital Age

Although digital anonymity is associated with a wide range of opportunities, it also stands in the way of successful criminal prosecution. The right to respect private and family life under the the EU Charter as well as the right to protection of personal data are of fundamental importance for natural persons. However, since life is increasingly taking place online, anonymity can be exploited to spread hate, discriminatory content, and fake news. Considering these risks, the ECJ has opened the door to data retention in Europe and thereby restricted digital anonymity.

2. Dezember 2024

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Data Retention Laws and La Quadrature du Net II

La Quadrature du Net II has been criticized for allowing generalized metadata retention measures. However, it is important not to lose sight of the fact that the law must not become a mechanism for protecting criminals. The scale of online rights violations are a real problem. P2P networks are not only a threat to copyright protection, but also an environment for the distribution of content related to serious crime. It is therefore necessary to strike a balance between these two concerns and to propose solutions that adequately protect users without guaranteeing impunity for criminals.

2. Dezember 2024

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New Media, New Data and a Dark Foreboding

After the major shift in surveillance practices from state power and control to big tech corporations and monetisation, we are currently witnessing yet another Zeitenwende: Surveillance practices as a means of hybrid warfare, with the AI-driven vision of accessing what people think and feel. This type of surveillance produces knowledge that not only claims to reveal what people are likely to do in the future but also what they feel and think. The consequences of this epistemological bending are potentially grave.

29. November 2024

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Testing the Waters of Private Data Pools

Nowadays, data is mostly collected not by state actors but by businesses. In 2010, the German Constitutional Court held that the legislator has to evaluate the overall level of surveillance in Germany before enacting new data retention obligations. In light of the recent rejuvenised discussions about data retention and a general surveillance account, this text explores whether such an account needs to consider private data pools and what is required for a successful evaluation.

29. November 2024

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Data Retention in a Cross-Border Perspective

This blog post compares the European and US approach to metadata surveillance and highlights some challenges that arise therefrom. It aims at shedding light on the main legal issues that may arise for the future of global counterterrorism. The essential role of courts in striking and keeping a balance between security and protection of human rights is further examined in light of the judgement in La Quadrature du Net II. Efforts should be made to avoid that the economic power of the US would lower the privacy standards when it comes to metadata surveillance.

28. November 2024

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The Long and Winding Road

The Court of Justice’s Quadrature du Net judgements mark another key moment in the complex and long-lasting legal debate on mass data retention in the European Union. This blogpost critically discusses the “constitutionalisation path” outlined by the EU Judges as well as the fragmented roads taken by Member States, with specific attention to Italy. Ultimately, it demonstrates the need for a decisive EU legislators’ intervention, able to draw the future path of data retention regimes.

28. November 2024

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Of Minor Benefits and Major Costs

Is general and indiscriminate data retention permissible under the EU fundamental rights framework? In La Quadrature du Net II, the Court tilts the metaphorical scale towards data retention. The take-away could contribute to the enlargement of privatised surveillance that rests on a generalised pre-emptive data retention scheme. The ECJ’s findings could cement intrusive practices emerging from the counter-terrorism narrative to regular state practice at the expense of fundamental rights protection.

28. November 2024

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Prioritising Member States Over Citizens

The classic story about the right to privacy and data protection in the EU is one of a high level of protection. Yet, this original rosy image is increasingly fading away, most visibly in the La Quadrature du Net litigation, which is a continuation of two dynamics. First, the Court is still cleaning up the residual mess that lingers on from the now annulled Data Retention Directive. Second, in so doing, it is incrementally allowing the Member States indiscriminately retain personal data. Hence, the Court is carving out space for Member States’ preferences to the detriment of the protection of the individual.

27. November 2024

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