Tag: Telekom Deutschland

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Advisor to EU’s top court suggests German bulk data retention law isn’t legal

The battle between the appetites of European Union Member States’ governments to retain their citizens’ data — for fuzzy, catch-all ‘security’ purposes — and the region’s top court, the CJEU, which continues to defend fundamental rights by reiterating that indiscriminate mass surveillance is incompatible with general principles of EU law (such as proportionality and respect for privacy) — has led to another pointed legal critique of national law on bulk data retention.

This time it’s a German data retention law that’s earned the slap-down — via a CJEU referral which joins a couple of cases, involving ISPs SpaceNet and Telekom Deutschland which are challenging the obligation to store their customers’ telecommunications traffic data.

The court’s judgement is still pending but an influential opinion put out today by an advisor to the CJEU takes the view that general and indiscriminate retention of traffic and location data can only be permitted exceptionally — in relation to a threat to national security — and nor can data be retained permanently.

In a press release announcing the opinion of advocate general Manuel Campos Sánchez-Bordona, the court writes that the AG “considers that the answers to all the questions referred are already in the Court’s case-law or can be inferred from them without difficulty”; going on to set out his view that the German law’s “general and indiscriminate storage obligation” — which covers “a very wide range of traffic and location data” — cannot be reconciled with EU law by a time limit imposed on storage as data is being sucked up in bulk, not in a targeted fashion (i.e. for a specific national security purpose).

The AG notes that indiscriminate bulk collection generates a “serious risk” — such as the people’s data might leak or be improperly accessed. And reiterates that it also entails a “serious interference” with citizens’ fundamental rights to private and family life and the protection of personal data.

While the opinion is not legally binding, CJEU rulings tend to align with its advisors. But it will be months more before a final ruling on this particular challenge is issued.

The CJEU ruled on a similar case over a year ago — involving legal challenges brought by a couple of digital rights groups to national bulk data collection and retention regimes operating under UK and French law — when the court ruled that only limited data collection and temporary retention was permissible.

(Although France has since been seeking to circumvent the judgement, per Politico — which reported back in March that the government had asked its highest administrative court not to follow the ruling.)

In a landmark ruling back in 2014 the CJEU struck down a 2006 EU directive that had been intended to harmonize data retention rules across the bloc — finding the regime had constituted a disproportionate interference with citizens’ rights. So you’d think Member States would have got the message by now.

However it seems unlikely this legal clash will be put to bed any time soon — not least because there are fresh moves afoot by national governments to revive a pan-EU data retention law, per a leaked discussion paper that Netzpolitik obtained and reported on this summer.

Europe’s top court confirms no mass surveillance without limits

EU states’ data retention laws still violating privacy rights, report warns

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Europe’s top court slaps down ‘zero rating’ again

Europe’s top court has dealt another blow to ‘zero rating’ — ruling for a second time that the controversial carrier practice goes against the European Union’s rules on open Internet access.

‘Zero rating’ refers to commercial offers that can be made by mobile network operators to entice customers by excluding the data consumption of certain (often popular) apps from a user’s tariff.

The practice is controversial because it goes against the ‘level playing field’ principle of the open Internet (aka ‘net neutrality’).

EU legislators passed the bloc’s first set of open Internet/net neutrality rules back in 2015 — with the law coming into application in 2016 — but critics warned at the time over vague provisions in the regulation which they suggested could be used by carriers to undermine the core fairness principle of treating all Internet traffic the same.

Some regional telcos have continued to put out zero rating offers — which has led to a number of challenges to test the robustness of the law. But the viability of zero rating within the EU must now be in doubt given the double slap-down by the CJEU.

In its first major decision last year — relating to a challenge against Telenor in Hungary — the court found that commercial use of zero rating was liable to limit the exercise of end users’ rights within the meaning of the regulation.

Its ruling today — which relates to a challenge against zero rating by Vodafone and Telekom Deutschland in Germany (this time with a roaming component) — comes to what looks like an even clearer conclusion, with the court giving the practice very short shrift indeed.

“By today’s judgments, the Court of Justice notes that a ‘zero tariff’ option, such as those at issue in the main proceedings, draws a distinction within internet traffic, on the basis of commercial considerations, by not counting towards the basic package traffic to partner applications. Such a commercial practice is contrary to the general obligation of equal treatment of traffic, without discrimination or interference, as required by the regulation on open internet access,” it writes in a (notably brief) press release summarizing the judgement.

“Since those limitations on bandwidth, tethering or on use when roaming apply only on account of the activation of the ‘zero tariff’ option, which is contrary to the regulation on open internet access, they are also incompatible with EU law,” it added.

We’ve reached out to Vodafone and Telekom Deutschland for comment on the ruling.

In a statement welcoming the CJEU’s decision, the European consumer protection association BEUC’s senior digital policy officer, Maryant Fernández Pérez, subbed the ruling “very positive news for consumers and those who want the internet to stay open to all”.

“When companies like Vodafone use these ‘zero tariff’ rates, they essentially lock-in consumers and limit what the Internet can offer to them. Zero-rating is detrimental to consumer choice, competition, innovation, media diversity and freedom of information,” she added.

Europe’s top court says net neutrality rules bar ‘zero rating’