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Question 42 - CIPP-E discussion

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How is the retention of communications traffic data for law enforcement purposes addressed by European data protection law?

A.

The ePrivacy Directive allows individual EU member states to engage in such data retention.

Answers
A.

The ePrivacy Directive allows individual EU member states to engage in such data retention.

B.

The ePrivacy Directive harmonizes EU member states' rules concerning such data retention.

Answers
B.

The ePrivacy Directive harmonizes EU member states' rules concerning such data retention.

C.

The Data Retention Directive's annulment makes such data retention now permissible.

Answers
C.

The Data Retention Directive's annulment makes such data retention now permissible.

D.

The GDPR allows the retention of such data for the prevention, investigation, detection or prosecution of criminal offences only.

Answers
D.

The GDPR allows the retention of such data for the prevention, investigation, detection or prosecution of criminal offences only.

Suggested answer: B

Explanation:

The ePrivacy Directive is a European Union (EU) directive that aims to protect the confidentiality of electronic communications and prevent their indiscriminate interception or monitoring. It was adopted in 2002 and amended in 2009.It applies to all providers of electronic communication services, such as internet service providers, mobile network operators, and online platforms12.

One of the main objectives of the ePrivacy Directive is to ensure that the retention of communications traffic data for law enforcement purposes is subject to strict conditions and safeguards.Communications traffic data refers to any information relating to the transmission or routing of electronic communications, such as IP addresses, timestamps, and metadata3.Such data can be used by competent national authorities for the prevention, investigation, detection or prosecution of criminal offences and safeguarding national security4.

However, the ePrivacy Directive does not allow individual EU member states to engage in such data retention without harmonizing their rules. Article 6(1)(b) of the directive states that "Member States shall ensure that any measures taken by them in relation to the retention of traffic data are consistent with this Directive''.Therefore, each EU member state must adopt a national law that complies with the requirements and limitations set by the directive12.

The Data Retention Directive (DRD) was a previous EU directive that aimed to establish a common framework for the retention of communications traffic data for law enforcement purposes across all EU member states. It was adopted in 2006 and amended in 2010. However, it was annulled by the Court of Justice of the European Union (CJEU) in 2014 on procedural grounds.The CJEU found that some provisions of the DRD were inconsistent with other EU directives and principles, such as Article 8(2) of the Charter of Fundamental Rights (CFR), which protects individuals from arbitrary interference with their privacy56.

The GDPR is a new EU regulation that implements some aspects of the DRD into national law through its provisions on processing personal data. However, it does not address directly the issue of communications traffic data retention for law enforcement purposes. Instead, it requires providers to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk involved in processing personal data.These measures include encryption, pseudonymisation, access control, and accountability7.The GDPR also grants individuals certain rights regarding their personal data, such as access, rectification, erasure, portability, and objection7.

Therefore, under current EU law, there is no single legal basis for retaining communications traffic data for law enforcement purposes across all EU member states. Each member state must adopt its own national law that respects the principles and limitations established by the ePrivacy Directive.

ePrivacy Directive

ePrivacy Regulation

What is Communications Traffic Data?

How is Communications Traffic Data Retained?

Data Retention Directive

Data Retention Directive annulled by CJEU

General Data Protection Regulation

What are your rights regarding your personal data?

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asked 22/11/2024
Bill May
45 questions
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