Europe (PI) – Key points Privacy International surveyed 21 EU member states’ legislation on data retention and examined their compliance with fundamental human rights standards 0 out of the 21 States examined by PI are currently in compliance with these standards (as interpreted…
British hacker Lauri Love was back at the Westminster Magistrate Court on July 25th for the final court hearing of his legal fight against extradition to the US. If extradited, he would face a sentence of up to 99 years for having allegedly hacked into the US Army, the US Federal Reserve, the Federal Bureau of Investigation, NASA, and the Missile Defence Agency, as part of the Anonymous-led online protest #OpLastResort.
Love’s trial has raised important questions for the right to privacy in the UK. When he first got arrested, Love was served with Section 49 of the Regulation of Investigatory Powers Act (RIPA), which allows the police to demand the decryption of a hard drive, under certain circumstances. In order to demand decryption, the police have to prove the defendant can decrypt the requested material, that ordering such decryption is necessary and proportionate, and that there is no other less invasive way to obtain the material. Love had declined to decrypt his hard drive and the National Crime Agency (NCA) did not pursue the case.
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.