Rejection of EU-wide data retention law - English

Exit the panopticon

By Juliane Mendelsohn10.04.2014Culture and Society

The ECJ’s ruling on the data retention directive is a landmark victory in the battle against unjustified state surveillance – but it comes too late to safeguard our basic freedoms.


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In the 18th century, social theorist Jeremy Bentham designed the panopticon, a circular prison that would allow maximum surveillance of all its prisoners, who could be observed by just one guard standing in the center of the construction (_the inspector’s lodge_) but was invisible to the inmates. Bentham envisioned that due to the _”apparent omnipresence of the inspector combined with the extreme facility of his real presence, persons inspected would always feel as if under inspection or at least standing a great chance of being so()”: This constant sense of surveillance would install a natural sense of order and self-discipline.

A landmark decision

Constant surveillance (or “transparency“) ultimately lead to loss of any sense of privacy and any sense of the self. This, of course, didn’t concern Bentham, whose theoretical interest lay in disciplining dysfunctional members of society. Similarly, when faced with the threats of terrorism and organized crime today, it is easy to forget (just like Bentham) what total surveillance does to the individual members of larger society. This is why we have human and civil rights: rights such as the right to privacy and private correspondence (Art. 7 of the European Convention on Human Rights) and the right not to be treated as a criminal suspect without a valid reason (Art. 8).

These rights could not have been more obviously and evasively breached than by the Data Retention Directive that obliged communication providers to store traffic, identification and location data of all users, and was declared invalid by a preliminary ruling of the European Court of Justice earlier this week. The nominal objective of the Directive was to harmonize the provisions concerning the retention of data generated or processed by providers of publicly available electronic communications.

After the Snowden leaks and everything we have learned about the NSA and GCHQ, and everything that we suspect about every other government security agency, overturning the Directive is a landmark in the long march towards reclaiming our freedoms. Looking at the Directive again after all these years, the only really puzzling question is: how could it have been passed in the first place? Are the privacy violations _en masse_ not obvious – even to the technocrats of Brussels?

The Directive treated every citizen as if under general suspicion. Whilst the Directive does not permit the acquisition of knowledge of the content of the electronic communications, it does make it possible to know the identity of persons as well as the time, place and frequency of their communications.

The court found that: _”these data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented()”: An obvious infringement that _is likely to generate in the persons concerned a feeling that their private lives are the subject of constant surveillance_ and that isn’t even counterbalanced with any specific provisions preventing the abuse of the data held but instead permits the communications providers storing the data _to have regard to economic considerations when determining the level of security which they apply_ – any good utilitarian’s dream.

While the effects of actual or possible state action on individuals’ social behaviour were analyzed and scrutinized (and utilized) as a special kind of science back in Bentham’s day, little attention – and certainly none from the law or policymakers – is being paid to these questions today. But the effects are real.

Essential freedoms gone forever?

Do you remember what it was like to assume that all of your personal data, every conversation, thought and emotion was your own and a secret? It would not be intercepted, stored, read, analyzed and couldn’t ever possibly be used against you in a court of law. A lot of the time we suppress the knowledge that this isn’t the case anymore. We suppress it because we have no way to imagine ourselves constantly watched, even though we know we are, and know that the consequences – both social and psychological – may be monstrous if these essential freedoms are gone forever.

With the landmark victory, this decision has made it clear that it is nearly impossible to implement any sensible model of a data retention system while respecting the right to privacy. But the guard must have another trick up his sleeve.

For now, we are allowed to exit the panopticon. Let’s hope it is not too late.



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