Police, security services and other investigators will be pacing the floor in the coming month anticipating a judgement by the Constitutional Court that could, they say, undermine one of the major tools of modern crime-fighting.
The problem concerns telephone data and a Belgian law that obliges all phone service providers to keep a record of all data traffic for 12 months.
The European Court of Justice has already ruled that the Belgian law is in contravention of European law. The question now is, what will Belgium’s Constitutional Court do with that instruction?
The data concerned, supporters argue, is not a breach of privacy in that the one-year law concerns only metadata: no information about the person concerned or the content of calls, but only data about location, the duration of a call and which numbers were concerned.
Police and other services use the data extensively, for example to ping the mobile phone of a missing person, or to find out whether a given person was in a given location at a given time.
Information other than metadata – such as a caller’s identity, or the content of a call – still requires a warrant from an investigating magistrate, which in turn requires proof that a crime is being committed or is about to be committed. No question, in other words, of police carrying out a ‘fishing expedition’ in the hope of finding evidence of crime.
According to the director-general of the federal judicial police, Eric Snoeck, taking away access to phone metadata would leave the police “deaf and blind.”
But according to Xavier Van Gils, president of Avocats.be, the association of the French- and German-speaking bar speaking to the RTBF, the government failed to demonstrate that the utility of the power justified the “a priori surveillance of 11 million people, 24 hours a day, in order to catch a few criminals”.
The Human Rights League, meanwhile, followed that reasoning. “The method is not proportionate, even if the fight against organised crime is of course a legitimate goal.”
It was the Constitutional Court itself that sent the matter to the European Court for its opinion, and now that has been given, the final decision will rest with the Constitutional Court, due to be delivered in April.
It seems inevitable that the Court will order the law to be amended, which is a worry for Snoeck.
“We are very concerned about respect for the privacy of individuals and we act in full accordance with the law, but we must retain access to a certain amount of information on a retroactive basis in order to conduct our investigations. We need to find a balance between protecting privacy and safeguarding our ability to fight crime.”