Data Retention and its Implications for the Fundamental Right to Privacy

Abstract

The Data Retention Directive is one of the most controversial acts adopted by the EU. The storage of an indeterminate amount of data – concerning every citizen of the EU – requires finding a balance between the need to fight terrorism and the rights to privacy and data protection, as declared in the Charter of Fundamental Rights of the EU, the ECHR, and by the common constitutional values shared by Member States. According to the CJEU (joined cases C-293/12 and C-594/12), the Directive ‘treats everyone as a suspect’, ‘monitors everyone’ and ‘puts everyone under surveillance’ and represents a ‘serious interference’ to citizens’ rights to privacy.The aim of this paper is to define – through a comparative analysis – the main features of the CJEU balancing process, trying to assess possible future scenarios for data retention in the European and domestic legal frameworks. The challenge remains the same: how to prevent serious crime and terrorism while preserving our fundamental rights?