CJEU asked to clarify whether use of bulk communication data by security agencies is covered by EU law

September 10, 2017

The Investigatory Powers Tribunal has asked the Grand Chamber of the CJEU to clarify whether the acquisition and use of Bulk Communications Data (BCD) by security agencies is outside the scope of EU law.

The decision was handed down on Friday 8 September as part of Privacy International’s ongoing challenge to the use of such data and follows on from their decision in Watson. That decision set out a list of requirements governing the use of personal data in criminal investigations. The argument is essentially whether the principles set out in the Watson decision apply because the cases are analogous. The respondents (that is the Government and related agencies) argue that the decision in Watson should not apply broadly because: 

  • this case is about national security and not about specific criminal investigations (as was the case in Watson
  • if Watson did apply then the decision  would be inconsistent with Arts 4 & 5 of the Treaty of the European Union
  • and there are sufficient safeguards under Article 8 of the ECHR to ensure the proper balance between privacy and national security

In the judgment The President of the IPT, Sir Michael Burton, appears keen to side with the respondents because of the issues of national security but at [69] points out why a reference is required: 

“We have carefully considered the evidence before us, both from the Claimant and the Respondents, and we are persuaded that if the Watson Requirements do apply to measures taken to safeguard national security, in particular the BCD regime, they would frustrate them and put the national security of the United Kingdom, and, it may be, other Member States, at risk. It is to be hoped that, whether by reconsideration, or clarification, of paragraph 119 of the Judgment, or otherwise, the Grand Chamber will take the opportunity to consider whether any further statement than that the safeguarding provisions of the ECHR should apply is required. “

He also refused the claimant’s application to expedite the matter.

The judgment is available on Bailii here. The relevant sections from the Watson judgement are included.