Tag: mass surveillance

The “Great Difficulty” of Mass Data Retention

In late July, the EU Advocate General (AG) released his opinion in the Watson et al. case pending before the Court of Justice of the EU (CJEU). The case challenges the UK’s Data Retention and Investigatory Powers Act 2014 (DRIPA), which requires communication service providers to retain all communications data passing through their networks. The AG’s opinion concludes that general data retention powers of this kind must be accompanied by certain strict safeguards if they are not to violate EU law.

The opinion of an AG, given before the judges themselves deliberate on a case, is advisory and has no legal effect (though in practice, the Court’s judgment tends to be consistent with the AG’s recommendations). As such, the opinion is often able to more fully explore a debate than the judgment that follows it. AG Henrik Saugmandsgaard Øe’s opinion in this case is no exception. Citing US President and founding father James Madison’s “great difficulty”—the tension between giving government the powers it needs to protect citizens, and preventing it from abusing those powers—the opinion addresses frankly the issues arising out of general data retention.