With one eye on current global debates concerning state surveillance and specifically the NSA Prism scheme, my other eye squint with concern. The arguments put forward supporting schemes such as Prism emphasize the “safe guards” claimed to have been put in place by governments (they do not mention the “transparency” of such schemes, which is a key element of the legal test). Also civil society privacy advocates seem to be mostly concerned with these safeguards, whether they are in place, how they are implemented etc. I’m squinting, because I worry that we get caught up in these arguments, intertwined in their legal particularities, the tests, their specific implementations. Are we not missing the grand picture here?

When listening to these arguments, looking for their truthfullness or implementation, or even being calmed by them, like it seems that most European leaders have been, we are denying ourselves the opportunity to discuss a frightening global trend. One that has moved us into a global society where data retention on an indiscriminate basis is the default.  The out set for the arguments about safeguards and legal tests is that this form of retention and accumulation of data, whether used or not, is the new accepted basis for state conduct.  In Denmark we were presented earlier this year by the ISP Association with the astonishing number 900 billion. 900 billion is the number of personal data that each year is retained by Danish ISP’s due to Danish data retention laws. A number as such seems clearer than water to me that we are presently giving up on some essential liberties for just a sense of security. At this very moment I am actually thinking about what words to use just in case. I have found myself in that situation many times before. And I would recommend anyone to do the same. But is that freedom? A proportionate balanced exercise of my rights?

I lean to the instruments that have prevailed many times before. The ECHR has on many occasions in its case law emphasized how indiscriminate data retention can be an interference in itself and a violation of the right to privacy. The Court also seems to be looking at the potential of new technologies for this type of data retention with some concern. As for example in S. and Marper v. the United Kingdom:

”The court observes that the protection as ordered by Article 8 of the convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests” ( §112)

It is furthermore an oddly perfect moment that UN’s special reporteur on Freedom of Expression Frank La Rue published his new “must read” report on the the implications of state surveillance on the Right to Freedom of Expression and Privacy. He here showcases his concern regarding the data retention trend:

“National data retention laws are invasive and costly, and threaten the rights to privacy and free expression. By compelling communications service providers to create large databases of information about who communicates with whom via a telephone or the Internet, the duration of the exchange, and the users’ location, and to keep such information (sometimes for years), mandatory data retention laws greatly increase the scope of State surveillance, and thus the scope for infringements upon human rights. Databases of communications data become vulnerable to theft, fraud and accidental disclosure.” (p.23)