THE RETENTION OF TRAFFIC AND LOCATION ELECTRONIC COMMUNICATIONS DATA IN THE EUROPEAN UNION FOR THE PURPOSE OF CRIMINAL PROCEEDINGS

Abstract

The retention of traffic and location electronic communications data remained to be one of the most debatable topics in the European Union regardless of its advantages in investigating and processing crimes. The regime introduced by the Data Retention Directive in 2006 has attracted the interest of both experts and the public. While some emphasized the importance of protecting national security, others focused on it being a gross invasion of citizens’ privacy. The broad debate ended with the declaration of the Data Retention Directive invalid by the Court of Justice of the European Union. With this ruling, the court did not rule out the possibility of retaining data for the purpose of fighting against serious crime but found that the same is allowed only with appropriate safeguards. The subsequent Court’s decisions however shed more light on the issue. After the Data Retention Directive has been revoked, the data retention domain remained regulated by the 2002 ePrivacy Directive. In parallel, the European Commission began proposing a new ePrivacy Regulation which should be aligned with the current state of play in the field of privacy and electronic communications. However, the process for adopting it turned out to be lengthy and still not completed. The most recent Court decision in the Dwyer case confirmed that the EU law precluded the general and indiscriminate retention of traffic and location data relating to electronic communications for the purposes of combating serious crime while giving more clarifications on data retention possibilities. This paper analyses the current regulatory framework in the field of data retention and relevant case law.