1. Transposing the Data Retention Directive in Greece: Lessons from Karlsruhe
Anna Tsiftsoglou & Spyridon Flogaitis
(University of Athens, Greece)
4th International Conference-Information Law & Ethics
Thessaloniki, Greece, May 20-21st, 2011

2. What Karlsruhe Said (2010)

3. 1. The ‘Privacy Test’ 10GG & ‘informational self-determination’
8 EU Charter Fund. Rights/ 8 ECHR (privacy)
Three-level test (legality – legitimacy – proportionality)
Proportionality involves additional safeguards to counterbalance intensity of interference
“Diffuse Threat” – chilling effects
Data Retention useful law enforcement tool (profiling techniques)

4. Proportionality check
Purpose Limitation
Minimize Scope of Data Processing – use plain and concrete language- enlist specific crimes
High Data Security Standards
No discretion left to operators
Independent Authorities may assume regulatory role
Transparency of Processing
Effective Legal Protection
Judicial Control/ Legal Sanctions/ Liability

5. Court Assessment
Present structure of provisions lacks the above four standards  dis-proportional
Contrary to 10GG/ extends to traffic data
Dissent (Schluckebier/Eichberger)-
Judicial activism/ changing nature of public safety

6. 2. Telecom Providers ‘Guarantors’ of personal data ?
New public-private networks/ data processing models / distributed surveillance
Financial burdens – who pays?
12GG/ 14GG/ Art1-First Protocol to ECHR
BVerfG says it does not exceed obligations if it is proportional
Market assumes cost shifts it to consumers?

7. 3. Karlsruhe v Luxembourg

8. Karlsruhe v. Luxembourg
No referral (267TFEU) to ECJ – no ‘dialogues’
C-301/07  ECJ confirmed 95EC as proper legal basis for DRD – reversed PNR ruling
Data retention as an ‘internal market affair’ – promoted EU Parliament’s position
Principle of Subsidiarity
Retention & storage  EU law
Access & use national law

9. Karlsruhe v. Luxembourg
‘sovereignty’ v ‘integration’-oriented approach
German constitutional identity as upper limit
Institutional balances – international spirit

10. The Greek Transposition

11. *Law 3917/2011* Late transposition – C-211/09
Traffic & location data treated as elements of ‘intimate communication’ 19Gr.Constitution
Enhanced guarantees- executive law 2225/94
Additional guarantees provided by new law
Failure to provide effective DP control:
‘Institutional verbosity’
Merger of administrative authorities

12. The ‘Moment of Truth’ for the Data Retention Directive

13. The EC Evaluation (April 2011)
Judicial Developments
More than 6 national courts have declared national transposing laws unconstitutional since 2008
Irish Referral to ECJ (2010) – case pending
Regulatory Developments (major deviations)
‘Data Retention a valuable tool’ (true?)
Commissioner Malmström: “I intend to review the Directive to clarify who is allowed to access the data, the purpose & procedures for accessing it” (Press Release, )

14. Lessons from Karlsruhe
Guarantees
Supervision
Sanctions, liability
Proportionality
‘quality of law’ - Purpose limitation
Assessment tool for anti-terrorist measures
Self-regulation
Inadequate - privacy standards should be imposed

15. Digital Activism

16. “Freiheit statt Angst” (Freedom, not Fear)
Berlin, October 11th 2008 – approximately 70,000 protesters – biggest privacy event in German history

17. Patrick Breyer –
the brain behind the BVerfG case

18. The Biggest in the Court’s History
Former PhD Student who wrote a thesis on ‘data retention’- His Movement ‘AK Vorrat’ managed to initiate 34,000 constitutional complaints to Karlsruhe-
The Biggest in the Court’s History