Careful Where You Log In. Handicaps of a Geographical Criterion

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(2), 791-793 | (Abstract) On its judgement of 21 December 2016, joined cases C-203/15 and C-698/15, Tele2 Sverige, the Court of Justice of the European Union took an important step in deterring massive data gathering and retention for law enforcement purposes. The Court stressed that the indiscriminate collection of personal data through communication channels could not be the rule under the Charter of Fundamental Rights and in line with the scope of Directive 2002/58, as well as with the principles of EU law. However, it might have gone too far in attempting to illustrate which objective criteria may be used to limit the retention, as a preventive measure, of traffic and location data. The Court resorted to a geographical standard in which national authorities determine a high risk of preparation for or commission of serious crime in certain areas and thus instruct service providers to retain data of people positioned there. As such, the Court has pursued a trail that raises ethical, social, and legal concerns. What is more, the judges did not justify their option, such as regarding the link between geographical profiling and effective crime deterrence. This Highlight exposes some of the problems of having the Court of Justice preferring such a criterion, especially regarding the objectivity it was aiming at and the potential discrimination against data subjects.

Keywords

• tele2
• cjeu
• cfreu
• directive 2002/58
• serious crime
• geographical criterion