Wednesday, April 9, 2014

Data Retention Challenge Earns Historical Victory for Privacy

I am sure all of you already know by this time about the epic privacy ruling - Digital Rights Ireland C-293/12 - that the Court of Justice of the EU yesterday handed down. This post won't be a usual legal analysis on which you are used to. I think that more learned colleagues and experts on human rights law, such as Steve Peers, Cybermatron, Daithí Mac Síthigh, Fiona de Londras, Paul Bernal can express and comment better on this ruling than I ever could.

I rather want to share with you my personal note of gratitude for this achievement that is owed to many amazing individuals not only in Europe. 

The success of Irish and Austrian reference is a very personal thing for me. Yet as a student at Law School, it was our first strategic litigation. Inspired by many members of EDRi taking actions in Germany, Czech republic, Romania and other countries, I and bunch of my wonderful colleagues decided to help out, formed EISi, and started sending out letters to Slovak authorities. And it did not work. Authorities completely ignored our requests, despite the fact that the German Constitutional Court (BVerfG) at the time already cancelled the German implementation. Its quite funny to think of it now, but for some unknown reason, probably more as citizens than scholars or lawyers, we felt that even BVerfG got it wrong. And so we started getting in touch with EDRi members such as Patric Breyer from German AK Vorrat, Jan Voboril from Czech IuRe, Katitza Rodrigez from EFF and many others. From the very beginning, I was very pleasantly surprised by very supportive and constructive atmosphere on EDRi mailing lists and also by how many great small organizations and individuals around the Europe decided to spend their time on fighting data retention. I was more than happy when three years later, I could finally report that we made it to the Slovak Constitutional Court.

And even thought preliminary reference eventually came from Austria and Ireland, I think it is important to view this as a win of many more individuals. As paradoxical as it sounds, I don't think that we could get here without many decisions of the national Constitutional Courts that got it wrong - from today's perspective (German one, Czech one, etc.). In a sense, I think that they framed the debate and thus gave us good grounds to demand more and more privacy from the state. All of us coming after, were inevitably building on these decisions, and also on all the scholarly commentaries, scientific responses or public interested steered by them.

I believe that nothing tells better the story behind this success as the fact that Digital Rights Ireland itself has no staff or office and that Austrian challenge was brought up almost 12.000 individuals. It tells us that it was not big corporations or angry industry, but small individuals who made this whole thing happen. Thank you to all of you!

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