BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Directive on privacy and electronic communications read in light of the
Charter.
240. However, in La Quadrature du Net and Others the CJEU
confirmed that while the Directive on privacy and electronic
communications, read in light of the Charter, precluded legislative measures
which provided for the general and indiscriminate retention of traffic and
location data, where a Member State was facing a serious threat to national
security that proved to be genuine and present or foreseeable, it did not
preclude legislative measures requiring service providers to retain, generally
and indiscriminately, traffic and location data for a period limited to what
was strictly necessary, but which could be extended if the threat persisted.
For the purposes of combating serious crime and preventing serious threats
to public security, a Member State could also provide – if it was limited in
time to what was strictly necessary – for the targeted retention of traffic and
location data, on the basis of objective and non-discriminatory factors
according to the categories of person concerned or using a geographical
criterion, or of IP addresses assigned to the source of an Internet connection.
It was also open to a Member State to carry out a general and indiscriminate
retention of data relating to the civil identity of users of means of electronic
communication, without the retention being subject to a specific time limit.
241. Furthermore, the Directive on privacy and electronic
communications, read in light of the Charter, did not preclude national rules
which required providers of electronic communications services to have
recourse, first, to the automated analysis and real-time collection of traffic
and location data, and secondly, to the real-time collection of technical data
concerning the location of the terminal equipment used, where it was
limited to situations in which a Member State was facing a serious threat to
national security that was genuine and present or foreseeable, and where
recourse to such analysis may be the subject of an effective review by a
court or independent administrative body whose decision was binding; and
where recourse to the real-time collection of traffic and location data was
limited to persons in respect of whom there was a valid reason to suspect
that they were involved in terrorist activities and was subject to a prior
review carried out either by a court or by an independent administrative
body whose decision was binding.
IV. RELEVANT COMPARATIVE LAW AND PRACTICE
A. Contracting States
242. At least seven Contracting States (being Finland, France, Germany,
the Netherlands, Sweden, Switzerland and the United Kingdom) officially
operate bulk interception regimes over cables and/or the airways.
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