Communications data is regarded as the ‘who, when, where and how of communications’ and is considered an important tool in the fight against terrorism and serious crime. However, the retention, access and use of communications data interferes with fundamental rights of individuals, creating the dilemma of striking a balance between the aims of a state and the fundamental rights of those under its jurisdiction. At a European Union level following Digital Rights Ireland, one way to ensure this balance is through judicial or independent control/oversight of access to communications data, regarded as a form of surveillance. This position has been confirmed by a subsequent Opinion of the Advocate General in Tele 2 and Watson as a mandatory requirement, and therefore, EU Member States must ensure judicial/independent control/oversight of access to communications data. This has been confirmed by the Grand Chamber of the Court of Justice of the European Union’s judgment in Tele 2 as being essential without expressly referring to it as a mandatory requirement. This is a welcome development, but it fundamentally overlooks the need for judicial or independent control/oversight of the retention of communications data, another form of surveillance. The UK has made some efforts in addressing retention of communications data by allowing authorisation to be controlled by Judicial Commissioners and the Investigatory Powers Commissioner. This article, however, argues, that even with judicial or independent control/oversight, obligations to retain in itself are unlikely to be compliant with the European Convention on Human Rights, to which, as the Advocate General in Tele 2 and Watson maintained, the Charter of Fundamental Rights should never be inferior to. General and indiscriminate obligations to retain have been precluded at an EU law level by the Court of Justice in Tele 2 and Watson, but it is argued that this still would not satisfy the European Convention. Therefore, the only way to ensure that data retention obligations are compatible with the European Convention is to guarantee independent, (individually) targeted authorisations of data retention (preservation) based on reasonable suspicion of identifiable serious offences, that is strictly necessary and proportionate, is the least restrictive measure with a suitable notification system. This article also considers the implications for the UK, in light of the recent referendum decision to leave the EU.
How to Cite:
White, M., 2017. Protection by Judicial Oversight, or an Oversight in Protection?. Journal of Information Rights, Policy and Practice, 2(1), p.None.