Privacy, Data Retention and Domination: Digital Rights Ireland Ltd v Minister for Communications
| DOI | http://doi.org/10.1111/1468-2230.12127 |
| Published date | 01 May 2015 |
| Date | 01 May 2015 |
Privacy, Data Retention and Domination: Digital Rights
Ireland Ltd vMinister for Communications
Andrew Roberts*
In Digital Rights Ireland Ltd vMinister for Communications, the European Court of Justice found the
EU Data Retention Directive, which required the retention of communications data for up to
two years, to be incompatible with Articles 7 and 8 of the EU Charter of Fundamental Rights –
the rights to privacy and to the protection of personal data. It is argued in this note that the
decision ought to be taken as one that is concerned with the exercise of arbitrary power, a concern
that is captured by the concept of domination.
INTRODUCTION
Are our interests harmed when the state requires those who provide us with
communications services to retain information about the way in which we use
those services – the telephone numbers that we call, the IP addresses of the internet
sites that we visit, details of who runs those sites or uses the numbers, and how
often and for how long we call or visit those websites? Many will think that they
are, that the retention of this information is a serious interference with our privacy.
Others may well take a more sanguine view, doubting whether it can properly be
said that mere retention of such information amounts to any interference with
privacy at all, or if it does, that it ought to be considered a relatively trivial
interference. It might be said that mere retention of communications data will
have no obvious effect on the lives of the great majority of those in respect of
whom data is retained. Views on what ought to be required by way of justification
for the retention of data are likely to vary in a way that corresponds roughly with
divergence of views on the value of privacy and gravity of the interference that
individuals suffer where communications data are retained. We might expect
those who believe that retention constitutes a particularly serious interference with
privacy to say that data retention ought to be predicated on some degree of
individualised suspicion, and that even where such suspicion exists, not every
piece of communications data should be retained. Those who attach less weight to
privacy interests, on the other hand, are more likely to accept the ‘needle in a
haystack argument’; mass data retention will ensure that a few vital pieces of
information are available to the state for the purposes of detecting and investigating
serious crime, but in order to find the needle in the haystack, one has to first secure
the haystack.1
*Melbourne Law School. I am grateful to my colleague Chantal Morton and an anonymous reviewer
for providing valuable comments on earlier drafts of this note.
1 See N. Taylor, ‘To Find the Needle Do you Need the Whole Haystack? Global Surveillance and
Principled Regulation’ (2014) 18 International Journal of Human Rights 45, citing the National
Security Agency director, General Keith Alexander, ‘if you’re looking for a needle in the haystack,
you have to get the haystack first’ in ‘National Security’ The Washington Post 14 October 2013
at http://www.washingtonpost.com/world/national-security/nsa-collects-millions-of-e-mail
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Andrew Roberts
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 535(2015) 78(3) MLR 522–548
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