Constitutional Court throws out data retention law
Friday, 23 April 2021
Credit: Priscilla Du Preez for Unsplash
The Constitutional Court of Belgium yesterday declared the so-called data retention law unconstitutional, a decision which threw police, investigating magistrates and prosecutors into turmoil.
Put briefly, the data retention law obliges all telecommunications companies to keep details of every transaction that takes place through their system for one year, just in case the authorities should later need to consult the data in the course of an investigation.
But privacy advocates and others have long complained that the law goes far beyond its remit, on two grounds. In the first place, the law does not discriminate: the details of every call or text message sent and received by every one of us are retained.
That does not include the content of such calls or messages, to be clear. Only the metadata – the numbers of both parties, duration of call and location of the parties – are saved.
In the second place, opponents argue, the law is one massive fishing expedition for the authorities. Instead of having to show just cause to investigate a named suspect’s phone traffic and obtain a warrant from the court, the authorities simply throw all of that data in a box – maintained by the telecoms companies at their own expense – and allow investigators to dip into it at their own convenience.
The Constitutional Court has now decided that has to stop. In cases already under investigation, where the retention law has been used, it will be up to a judge to decide if the retained data can be used.
In new cases, however, the data is off limits from now on.
The authorities are already claiming they will be stripped of a vital source of information by the ruling, and not only in criminal cases. For example, in missing persons cases, it is often vital to be able to locate the rough location of the person according to their GSM signal. That information will no longer be available.
Federal justice minister Vincent Van Quickenborne (Open VLD) said he and his colleagues at defence and telecoms were already – after the data retention law was declared unlawful by the European Court of Justice – at work designing a new replacement.
“In 90 percent of judicial investigations, that phone data is used. So there must be a new law. It will be a layered law, more specifically targeting the type of crime, and privacy will be taken into account,” he said.