Data Retention and the Future of Large-Scale Surveillance: The Evolution and Contestation of Judicial Benchmarks

Abstract

The Court of Justice of the European Union (CJEU)’s decisions in Privacy International and La Quadrature du Net and others have resurfaced a much-debated topic on the legal limitations of law enforcement authorities and intelligence services under EU law in implementing surveillance operations. In these decisions, the CJEU reinstated and at times remoulded its case law on national data retention schemes. In so doing, it unearthed a variety of legal issues. This article aims to critically analyse three main issues; namely the legal limitations of (indiscriminate) surveillance measures, the role of the private sector in the scheme, and the line between the competence of Member States and EU on national security matters. It also aims to remark on the latest developments on the reception of the decisions by Member States and EU legislator, as well as at the European Court of Human Rights (ECHR) on indiscriminate surveillance and their cross fertilization with the CJEU’s findings thereto.