09 December 2024
The AI Act National Security Exception
In 2024, the EU legislators adopted a detailed national security exception to the AI Act, contravening prior EU case law. Beyond the possibility of a future ruling that would realign the AI Act’s scope with said case law, the impact of this exception might be limited by other applicable laws and the interpretative and practical difficulty of distinguishing between national and public security. The AI Act’s failure to sufficiently account for these intricacies risks further legal uncertainty within the already complex security landscape. Therefore, this blog post explores the challenges of implementing the exception of national security to the AI Act’s scope of application. Continue reading >>
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02 December 2024
A Right to Anonymity in the Digital Age
Although digital anonymity is associated with a wide range of opportunities, it also stands in the way of successful criminal prosecution. The right to respect private and family life under the the EU Charter as well as the right to protection of personal data are of fundamental importance for natural persons. However, since life is increasingly taking place online, anonymity can be exploited to spread hate, discriminatory content, and fake news. Considering these risks, the ECJ has opened the door to data retention in Europe and thereby restricted digital anonymity. Continue reading >>02 December 2024
Data Retention Laws and La Quadrature du Net II
La Quadrature du Net II has been criticized for allowing generalized metadata retention measures. However, it is important not to lose sight of the fact that the law must not become a mechanism for protecting criminals. The scale of online rights violations are a real problem. P2P networks are not only a threat to copyright protection, but also an environment for the distribution of content related to serious crime. It is therefore necessary to strike a balance between these two concerns and to propose solutions that adequately protect users without guaranteeing impunity for criminals. Continue reading >>
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29 November 2024
Testing the Waters of Private Data Pools
Nowadays, data is mostly collected not by state actors but by businesses. In 2010, the German Constitutional Court held that the legislator has to evaluate the overall level of surveillance in Germany before enacting new data retention obligations. In light of the recent rejuvenised discussions about data retention and a general surveillance account, this text explores whether such an account needs to consider private data pools and what is required for a successful evaluation. Continue reading >>28 November 2024
Compensation for Victims of Violent Crimes
On 7 November 2024, the CJEU provided clarifications for building a cohesive EU-wide framework for compensating crime victims. The ruling not only curtails Member States’ discretion in interpreting key concepts that are critical to defining eligibility for compensation, but it also strengthens the interplay between the Compensation Directive and the Victims’ Rights Directive. This judgment reinforces the the harmonized definition of victim established in Article 2 of the Victims’ Rights Directive, solidifying its status for determining those entitled to victim’s rights. Continue reading >>
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28 November 2024
Data Retention in a Cross-Border Perspective
This blog post compares the European and US approach to metadata surveillance and highlights some challenges that arise therefrom. It aims at shedding light on the main legal issues that may arise for the future of global counterterrorism. The essential role of courts in striking and keeping a balance between security and protection of human rights is further examined in light of the judgement in La Quadrature du Net II. Efforts should be made to avoid that the economic power of the US would lower the privacy standards when it comes to metadata surveillance. Continue reading >>
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28 November 2024
The Long and Winding Road
The Court of Justice’s Quadrature du Net judgements mark another key moment in the complex and long-lasting legal debate on mass data retention in the European Union. This blogpost critically discusses the “constitutionalisation path” outlined by the EU Judges as well as the fragmented roads taken by Member States, with specific attention to Italy. Ultimately, it demonstrates the need for a decisive EU legislators’ intervention, able to draw the future path of data retention regimes. Continue reading >>
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28 November 2024
Of Minor Benefits and Major Costs
Is general and indiscriminate data retention permissible under the EU fundamental rights framework? In La Quadrature du Net II, the Court tilts the metaphorical scale towards data retention. The take-away could contribute to the enlargement of privatised surveillance that rests on a generalised pre-emptive data retention scheme. The ECJ’s findings could cement intrusive practices emerging from the counter-terrorism narrative to regular state practice at the expense of fundamental rights protection. Continue reading >>
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27 November 2024
Die Vorratsdatenspeicherung
Die jüngeren Urteile des EuGHs zur Vorratsdatenspeicherung sind nicht als „kopernikanische Wende“ zu verstehen, in der der EuGH sein Selbstverständnis als Grundrechtsgericht aufgegeben hätte. Sie sind keine autoritär motivierte Abkehr von einer vormals grundrechtsfreundlichen Rechtsprechung. Vielmehr fügen sich die Urteile ein in die komplexe Entwicklung des ursprünglich national geprägten Sicherheitsverfassungsrechts. Diese Einordnung bedarf eines genaueren Blickes. Continue reading >>
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27 November 2024
Data Retention
The recent judgements of the CJEU on data retention should not be regarded as an authoritarian move towards a less fundamental rights-sensible position of the Court. Rather, the case law adapts the ever more complex development of the constitutional security law, which was originally dominated by the Member States. As a European court, the CJEU cannot simply ban certain police measures but must respect the complexity and heterogeneity of national law enforcement agencies. Continue reading >>
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