On 15 January 2020, Advocate General Campos Sanchez-Bordona issued his Opinion in four joined cases concerning the retention of and access to personal data in the context of national security.
One of the four joined cases, Case C-623/17 Privacy International, concerned the UK Security Intelligence Agencies’ collection of bulk communications data (i.e. the ‘who, when, where, how, and with whom’ of a communication), pursuant to a direction to electronic services providers made by the Secretary of State under section 94 of the Telecommunications Act 1984.
The Investigatory Powers Tribunal referred to the Court of Justice of the European Union (‘CJEU”) the questions whether such conduct fell within the scope of EU law and, if so, whether the safeguards specified in the Court’s earlier case law (in particular C/203-15 and C-698/15 Tele2 and Watson) would have to be applied. The Investigatory Powers Tribunal had indicated its view that the matter was not in scope of EU law and, even if it were, the CJEU’s safeguards could not be applied in this context.
The Advocate General rejected the Investigatory Powers Tribunal’s reasoning. He indicated that the matter was in scope of EU law because the direction under section 94 required the processing of personal data by providers of electronic communications services and “national security concerns cannot, as suggested by the referring court, prevail over that conclusion” (§31).
As to the applicable safeguards, he concluded that “the national legislation cited in this reference does not satisfy the conditions established in the Tele2 Sverige and Watson judgment, because it involves general and indiscriminate retention of personal data” (§37).
The judgment of the CJEU is awaited.
Thomas de la Mare QC, Ben Jaffey QC and Daniel Cashman acted for Privacy International.
Sir James Eadie QC acted for the Security Intelligence Agencies before the Investigatory Powers Tribunal.
The Advocate General’s Opinion can be read here.