Judgment Approved by the court for handing down.
which the ECtHR accepted prior authorisation of individual
warrants by the Secretary of State even where the interception
of content was concerned.
(b) Though the CJEU was prepared to describe data retention
as a “particularly serious” infringement of fundamental
rights, concrete examples of harm are not provided and are
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not immediately evident. While there may be some for
whom the retention of data “is likely to generate in the minds
of the persons concerned the feeling that their private lives
are the subject of constant surveillance”(Digital Rights
Ireland, para 37), the survey evidence suggests that this is
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putting it rather high.
(c) There is a case for excluding the use of retained
communications data in relation to the most trivial of
offences (5.67(e) above). But if the mark for “serious crime”
is set too high, damaging crimes will go needlessly
unpunished and public confidence in law enforcement will be
reduced.
(d) To limit retention to “particular persons likely to be
involved, in one way or another, in a serious crime”, and/or
to “persons who could, for other reasons, contribute, by the
retention of their data, to the prevention, detection or
prosecution of serious offences”(Digital Rights Ireland, para
59), would not only reduce the effectiveness of data retention
in identifying targets but would carry other risks, since to
seek to apply such nebulous distinctions would be to court
allegations of prejudice, profiling and unlawful
discrimination.
5.79. The wider implications of the judgment also need to be
reflected upon. Though Digital Rights Ireland did not concern
the bulk interception of content, it is arguable that its principles
(including in relation to prior independent authorisation) should
apply in that area with at least the same force. Indeed the CJEU
stated in terms that the bulk interception of content would be
more intrusive, since unlike the Data Retention Directive it
would affect the “essence” of the fundamental right to privacy
(para 39). There may be implications also for other types of
surveillance in relation to which types of self-authorisation are
practised, in particular by the security and intelligence
agencies. All this is subject to EU law being applicable: though
to the extent that Digital Rights Ireland may in the future be
adopted or followed by the ECtHR, that distinction will cease
to matter.”
The Strasbourg case law
Davis & Ors v SSHD