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allow, for the purposes of safeguarding national security, recourse to an instruction requiring
providers of electronic communications services to retain, generally and indiscriminately,
traffic and location data in situations where the Member State concerned is confronted with a
serious threat to national security that is shown to be genuine and present or foreseeable,
where the decision imposing such an instruction is subject to effective review, either by a
court or by an independent administrative body whose decision is binding, the aim of that
review being to verify that one of those situations exists and that the conditions and
safeguards which must be laid down are observed, and where that instruction may be given
only for a period that is limited in time to what is strictly necessary, but which may be
extended if that threat persists;
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provide, for the purposes of safeguarding national security, combating serious crime and
preventing serious threats to public security, for the targeted retention of traffic and location
data which is limited, on the basis of objective and non-discriminatory factors, according to
the categories of persons concerned or using a geographical criterion, for a period that is
limited in time to what is strictly necessary, but which may be extended;
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provide, for the purposes of safeguarding national security, combating serious crime and
preventing serious threats to public security, for the general and indiscriminate retention of IP
addresses assigned to the source of an Internet connection for a period that is limited in time
to what is strictly necessary;
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provide, for the purposes of safeguarding national security, combating crime and
safeguarding public security, for the general and indiscriminate retention of data relating to
the civil identity of users of electronic communications systems;
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allow, for the purposes of combating serious crime and, a fortiori, safeguarding national
security, recourse to an instruction requiring providers of electronic communications services,
by means of a decision of the competent authority that is subject to effective judicial review,
to undertake, for a specified period of time, the expedited retention of traffic and location data
in the possession of those service providers,
provided that those measures ensure, by means of clear and precise rules, that the retention of data
at issue is subject to compliance with the applicable substantive and procedural conditions and that
the persons concerned have effective safeguards against the risks of abuse.
Questions 2 and 3 in Case C‑511/18
169
By questions 2 and 3 in Case C‑511/18, the referring court asks, in essence, whether Article 15(1)
of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must
be interpreted as precluding national legislation which requires providers of electronic
communications services to implement, on their networks, measures allowing, first, the automated
analysis and real-time collection of traffic and location data and, second, real-time collection of
technical data concerning the location of the terminal equipment used, but which makes no
provision for the persons concerned by that processing and that collection to be notified thereof.
170
The referring court notes that the intelligence gathering techniques provided for in
Articles L. 851‑2 to L. 851‑4 of the CSI do not impose on providers of electronic communications
services a specific obligation to retain traffic and location data. With regard, in particular, to the
automated analysis referred to in Article L. 851‑3 of the CSI, the referring court observes that the
aim of that processing is to detect, according to criteria established for that purpose, links that might
constitute a terrorist threat. As for the real-time collection referred to in Article L. 851‑2 of the CSI,
that court notes that such collection concerns exclusively one or more persons who have been
identified in advance as potentially having a link to a terrorist threat. According to that same court,
those two techniques may be implemented only with a view to preventing terrorism and cover the
data referred to in Articles L. 851‑1 and R. 851‑5 of the CSI.
2/15/2021, 4:58 PM