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Germany's blanket data retention law is illegal, EU top court says

reuters.com

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Re: Germany's blanket data retention law is illegal, EU top court says

#41
post #3

Our data retention laws get overturned all the time. Usually already by our constitutional courts. Sadly our politicians don’t care much and don’t get punished, so they just try it again and again and again and usually it’s in effect for a while before the courts give judgement. I really can’t explain where Politikverdrossenheit (political apathy) comes from. edit: The last sentence is sarcasm

From 51:25 in this BBC documentary [0] you're introduced to Horst Herold [1] the President of the BKA (Federal police) who instigated the creation of the Suchsystem Inpol sowie Analysen [2] to catch the Baader Meinhoff gang by trawling citizens data. Until the violence of the Baader Meinhoff gang, there was sufficient popular sentiment including in politics, against any Federal use of power as prohibited by the constitution. This was effectively reversed with the assassination of Alfred Herrhausen [3] using a enfilade of shaped charges to slice through his armoured limousine. Herold created the first European data dragnet to identify anyone who profiled similarly to his quarry. The gang were apprehended only using indirect evidence ,[edit: of their whereabouts]. Violence and the ensuing police reactions disheartened and suppressed opposition to Federal government enforcement.

[0] https://www.bbc.co.uk/iplayer/episode/p093wy1r/cant-get-you-... ,

[1] https://en.m.wikipedia.org/wiki/Horst_Herold ,

[2] https://de.m.wikipedia.org/wiki/INPOL ,

[3] https://en.m.wikipedia.org/wiki/Alfred_Herrhausen

Re: Germany's blanket data retention law is illegal, EU top court says

#42

Earlier quoted context omitted.

Member states are sovereign insofar as the EU institutions only have jurisdiction because the member states allow them to do so. EU law only applies because local law says it applies. The ECJ is the highest court in any of the member countries because the law in those countries say it is. This differs from the situation in the US where Texas couldn't pass an amendment to their state constitution declaring that they a…

Couldn’t Texas exit the US in the same way that European countries can exit the EU?

No

There is no codified legal process for a US state to leave the Union, and the only previous attempt caused a civil war

A member of the EU has both an implicit right to withdraw from the treaties (deriving from international customary law around treaties) and an explicit legal path to follow. A process which they control in their entirety (as in they can't be forced to stay longer than they wish by the other countries and can't be forced to leave earlier than the prescribed deadline)

Re: Germany's blanket data retention law is illegal, EU top court says

#43
post #5

Is the ECJ kind of a Supreme Court that can overturn member state laws and rulings? I had the impression member states were 100% sovereign within the EU...

The supremacy of EU law is a pretty interesting one. It is a fundamental principle of the EU that EU law takes primacy/supremacy over national law (in areas where the EU has competence). How this actually works in practice can be a bit fuzzy, because the EU is certainly not going to send tanks into a member state's capital to enforce its laws.

As I understand it, the way this usually works is by national law explicitly endorsing EU law (usually at the level of the national constitution) and stating that in the event of any contradiction between EU law and domestic law, EU law will prevail. So EU law is "supreme" in practice, but that supremacy is granted/recognised under the domestic constitutional order.

In some countries, this recognition is limited, such that national courts will not permit EU law to override certain aspects of the national constitutional order. When that happens, there is really no easy solution.

An interesting recent example is https://www.politico.eu/article/brussels-closes-case-against... where the German court found that an ECB bond-buying programme was unconstitutional and in doing so refused to follow a prior decision of the ECJ.

Another consequence of this approach to supremacy is that significant changes to the EU treaties require a constitutional amendment in Ireland, which requires a referendum. To my knowledge Ireland is the only country to have such a binding legal requirement, with the effect that a number of amendments to the treaties have in the past been delayed or defeated by the Irish public voting against them.

Re: Germany's blanket data retention law is illegal, EU top court says

#44

Earlier quoted context omitted.

EU treaties are not a constitution and the constitution the people gives itself stands above all.

But if your constitution is incompatible with the treaties required to be member in the EU, you essentially have two options: change your constitution or not be member of the EU.

Or, leave both the constitution and treaties in place and wait to see if the EU bothers to take adverse action.

Re: Germany's blanket data retention law is illegal, EU top court says

#45
post #39

Earlier quoted context omitted.

Couldn’t Texas exit the US in the same way that European countries can exit the EU?

No, the EU has a specific process for leaving by asking, while the US states can only leave if a sufficient number of the other states agree to it. The EU isn't really a country, it's a free trade agreement with an unusually democratic (by the standard of FTAs) process for updating its own rules.

>The EU isn't really a country, it's a free trade agreement with an unusually democratic (by the standard of FTAs) process for updating its own rules.

The EU isn't just a free trade agreement and it has never been just a free trade agreement. It has always been a political endeavour.

Of course that doesn't make it a country or a nation state at all, but let's not go too far in the other direction when trying to describe it.

Re: Germany's blanket data retention law is illegal, EU top court says

#46
And laws about the data collection, collation, and usage by governments date quite a way back...

For instance, the 1974 French SAFARI scandal,

where the government wanted to build a centralized computer database that would collect country-wide administrative data, starting with the 400 (physical) police files, and IIRC with a single social security number for each citizen,

has caused such an uproar that the project was abandoned and the data privacy regulator CNIL was soon created.

(Note the totalitarianism (aka "high modernism") inherent in computers, by the way what they show tends to be accepted as truth, the way they don't have any common sense, the way their digital nature tends to classify people into strict categories, which then become set in stone by their limited capacity to forget, the way the free flow of information turns qualitative and how they give a lot of power to the State while democracies try to limit this power.)

Sadly, we've recently seen its failure - caused in a big way by it being stripped of its power in 2004, leaving only a consultative (non-)power - in 2010 a law about "a general principle of information sharing between administrations" has still been created.

Some notable worries are about the preceding 2007 law that authorized ethnic statistics - while personal data treatment using ethnic or racial data, and adding race and religion values in the administrative files are still forbidden - the potential of ethnic data becoming racial data is still very high.

Another worry is about the genetic prints file : created in 2002 and first limited to sexual criminals, it has since been extended to a whopping 5% of the population, 87% of which have NOT (yet, quite a lot of the debate being how long these files should be kept) been condemned for the reason they got added to the file. It gets worse, and shows how quantitative can become qualitative : because genetic information is NOT independent between family members, a staggering third of the population ends up having its genetic identifiers at least partially stored in these files.

A 2022 project (submission date ending 2 weeks ago) to interconnect the digital prints file with the criminal records file has mentioned a potential future project of connecting both with the generic prints file... (among others) with also a policemen-suggested requirement that "the solution be compatible with remote work [...] not requiring strong authentication".

Re: Germany's blanket data retention law is illegal, EU top court says

#47

Earlier quoted context omitted.

EU treaties are not a constitution and the constitution the people gives itself stands above all.

But if your constitution is incompatible with the treaties required to be member in the EU, you essentially have two options: change your constitution or not be member of the EU.

It's a bit more complicated than this, because the treaties don't really have any mechanism for unilaterally expelling a member state and there is no precedent for doing so. The reality is there is no easy answer to what happens when a national constitution is incompatible with EU law.

Re: Germany's blanket data retention law is illegal, EU top court says

#48
post #5

Is the ECJ kind of a Supreme Court that can overturn member state laws and rulings? I had the impression member states were 100% sovereign within the EU...

Define sovereignty

Member states have agency to leave the EU whenever they'd like if they wish not to be bound by agreed upon laws

Re: Germany's blanket data retention law is illegal, EU top court says

#49

Earlier quoted context omitted.

* some of the then-elected governments There was a national referendum before the Lisbon treaties that was declined by the Netherlands and France, which in turn "watered down" the EU constitution into the Lisbon treaties which are now in use, which were then ratified without any national votes. As the German politician Martin Scholz once said, if the EU were to apply for an EU membership, it would get declined becaus…

> As the German politician Martin Scholz once said, if the EU were to apply for an EU membership, it would get declined because of a lack of a democratic foundation. That's the way it should be. In a democratic state, the state itself is sovereign, while the citizens are not. The rights of the citizens depend on the constitution, which can be changed according to a democratic process. The EU is a union of sovereign s…

Well, since I live in Switzerland, I am happy to disagree. Swiss people vote on many things multiple times per year and consider this a fundamental right and this the way it should be.

Re: Germany's blanket data retention law is illegal, EU top court says

#50
Note that the ruling defines a number of exemptions. See the text following “However, EU law does not preclude national legislation which” in the press release: https://curia.europa.eu/jcms/upload/docs/application/pdf/202...

In particular, service providers will probably still have to maintain the infrastructure to activate “general and indiscriminate” data retention on demand.

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