Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR

• DOI: http://doi.org/10.1111/j.1468-0386.2005.00264.x
• Date: 01 May 2005
• Published date: 01 May 2005
• Author: Patrick Breyer

Telecommunications Data Retention

and Human Rights: The Compatibility

of Blanket Traff‌ic Data Retention

with the ECHR

Patrick Breyer*

In today’s information-oriented society, more and more social interaction is taking

place via telecommunications networks. Private and business life is increasingly con-

ducted via the telephone, mobile phone, and Internet. Patients consult doctors by tele-

phone, people who are in diff‌iculty consult the crisis line or drug-counselling websites

on the Internet. Businesses transmit conf‌idential data via telecommunications networks

daily. Mobile phones and the Internet have become ever more important elements of

daily life. As a result, the landslide success of these new technologies has opened up

formerly unanticipated potential for surveillance, the extent of which could make both

the dreams of criminalists and (former) ‘Big Brother’ dystopias come true. Whatever a

person does using a mobile phone or the Internet can be effortlessly centrally recorded.

The retention of such ‘traff‌ic data’—as opposed to the actual content of telecommu-

nications—allows whoever has access to it to establish who has communicated with

whom and at what time. In the case of mobile phones, the geographical movements of

the owner can be tracked as well. The analysis of traff‌ic data may reveal details of a

person’s political, f‌inancial, sexual, religious stance, or other interests. Therefore, it is

fully justif‌ied to describe blanket traff‌ic data retention as a new dimension in surveil-

lance, as compared to traditional police powers. Data retention does not only apply in

specif‌ic cases. Instead, society is being pre-emptively engineered to enable blanket

recording of the population’s behaviour, when using telecommunications networks.

Demands for traff‌ic data retention have been repeatedly voiced on the basis that

access to traff‌ic data is increasingly becoming the only means by which state authori-

ties can fulf‌il their tasks. There is no doubt that access to telecommunications data and

its content is one of the most commonly used ways of gathering information for crim-

inal investigations and the activities of intelligence services. Traff‌ic data is usually the

only way to identify users of telecommunications networks. Therefore, the availability

of such data is often crucial to the successful investigation of crimes committed by

European Law Journal, Vol.11, No. 3, May 2005, pp. 365–375.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Dr. Jur. (Germany). This article is a summary of the f‌indings of the author’s thesis on data retention,

Die systematische Aufzeichnung und Vorhaltung von Telekommunikations-Verkehrsdaten für staatliche

Zwecke in Deutschland [Vorratsspeicherung, traff‌ic data retention] (Rhombos, 2005). Available at

.