Data Retention in Europe and Beyond Law and Policy in the Aftermath of an Invalidated Directive

by Kosta, Eleni; Kamara, Irene

• ISBN13: 9780198897736
• ISBN10: 0198897731
• Format: Hardcover
• Copyright: 2025-05-18
• Publisher: Oxford University Press

Summary

In the aftermath of the invalidated Data Retention Directive, the Court of Justice of the European Union (CJEU) published extensive case law that shaped the rules, requirements, and safeguards on the retention of traffic and location data and their subsequent access for law enforcement purposes in accordance with EU law.

Against this backdrop, Data Retention in Europe and Beyond unites leading scholars and practitioners to offer a cutting-edge and multifaceted analysis of issues relating to data retention. The chapters in this book explore the development of the EU case law, the interaction with European Court of Human Rights (ECtHR) jurisprudence, the interplay between data retention and mass surveillance, the proportionality principle in the CJEU jurisprudence rulings, and data retention in the proposed ePrivacy Regulation. The book offers eleven country-specific analyses of European Member States as well as chapters on the data protection regimes of India, Japan, and the US. Further chapters examine the role of the courts in the context of data retention and discuss epistemic (in)justice. The book also contains extensive contributions on automated analysis of retained data by means of algorithms, and retention as intrinsic facet of administrative and surveillance vulnerability.

Comprehensive and informative, this volume not only provides a critical assessment of legal and policy developments, but also will inform policymakers on the potential future for data retention regulation in the European Union and beyond.

Author Biography

Eleni Kosta, Professor of Technology Law and Human Rights, Tilburg Institute for Law, Technology and Society (TILT Tilburg University),Irene Kamara, Assistant Professor of Cybercrime Law and Human Rights, Tilburg Institute for Law, Technology and Society (TILT, Tilburg University)

Eleni Kosta is a Professor of Technology Law and Human Rights at the Tilburg Institute for Law, Technology and Society (TILT, Tilburg University). In 2024, she co-edited a commentary on The EU Law Enforcement Directive (LED). In 2014, Professor Kosta was awarded a personal research grant for research on privacy and surveillance by the Dutch Research Organisation (VENI/NWO). She is a member of KYSATS, the Cyprus for the recognition of higher education qualifications. Eleni also collaborates as associate with the lawfirm timelex.


Irene Kamara is an Assistant Professor of Cybercrime Law and Human Rights at the Tilburg Institute for Law, Technology and Society (TILT, Tilburg University) and an affiliated researcher at Vrije Universiteit Brussel. She has conducted research for the European Commission, the Dutch National Cyber Security Agency, the European Cybersecurity Agency among others. She is a member of the ENISA Experts List, the EDPB experts pool, and the CEN-CENELEC/BTWG 3 'STAIR' on STAndardization, Innovation and Research. Irene was the winner of the 2021 Standards+Innovation Individual Researcher award of the European Standardisation Organisations and is also a qualified attorney-at-law.

Table of Contents

1. Introduction: Data Retention in the EU and Beyond: An Evolving Landscape, Eleni Kosta and Irene Kamara2. The Evolution of the CJEU Case Law on Data Retention: Towards the Regulation of Access, Eleni Kosta3. Data Retention and the Judicial Parameters of Mass Surveillance in EU Law, Valsamis Mitsilegas4. A Critical Comment on Proportionality in the Mass Surveillance Jurisprudence of the CJEU and the ECtHR, Lorenzo Dalla Corte5. Proportionality and Strict Proportionality in the Case-law of the Court of Justice of the European Union on Data Retention, Daniele Nardi6. [Title here, up to 12 words, on one to two lines], Xavier Tracol7. Data Retention in Germany: Not a Never-ending Story After All?, Matthias Bäcker8. The Long Way to the Compliance of Data Retention with EuropeanUnion Law: The Italian Case, Luigi Montuori and Veronica Tondi9. Consequences of the Ccollapse of a Directive: Tthe aAftermath of CJEU Ddata Rretention Ccase Llaw on Cypriot Jjurisprudence, Christiana Markou10. Data Retention in Ireland: When European Law Meets National Recalcitrance, TJ McIntyre11. A Clash Between the French System and the CJEU Case Law on Data Retention?, Maxime Lassalle12. Data Retention Amid the Erosion of the Constitutional Order: The Case of Poland, Magdalena Brewczynska13. The Impact-or No Impact-of the CJEU Case Law on Data Retention in Spain, Lorena Bachmaier WinterAntonio Martínez Santos14. Data Retention and Law Enforcement in the Netherlands, Marc van der HamEsther Baars15. To Retain or (not) to Retain Data? The Danish Case, Ayo Næsborg-Andersen16. Belgium's New Data Retention Legislation: Third Time Lucky, or Three Strikes and You're Out?, Vanessa FranssenCatherine Van de Heyning17. The Swedish Data Retention Saga: From EU Initiator to Penalty Payments, Reviewed and Revised National Rules, Maria Bergström18. Data Retention and Law Enforcement Access to Personal Data in India, Shweta Reddy Degalahal19. Regulating Data Retention in Japan, Xenofon V Kontargyris20. Regulating Access: A Brief Overview of US Regulations on Access to Communications Data, Bryce Clayton Newell21. The Judicialization of EU Data Retention Law: Epistemic Injustice and the Construction of an Unequal Surveillance Regime, Maria Tzanou22. Data Retention as a Matter of Constitutional Law, Marco Bassini23. Passenger Name Records: Necessary Data Retention to Fight Crime and Terrorism, or Threatening Privacy and Data Protection?, Lucas M Haitsma, Oskar J Gstrein, Heinrich Winter24. Data Retention and Automated Processing of Personal Data: Unpacking the CJEU's Approach, Niovi Vavoula25. Automated Analysis in the AFSJ and Digital Single Market Monitoring: An Effaced Nexus, Maria Grazia Porcedda26. On Administrative and Surveillance Vulnerability and the Digital Government in the EU, Maria-Lucia RebreanGianclaudio Malgieri27. Data Retention and the 'Chilling Effect' in the Context of Mass Surveillance and a Tacit Sift Towards a Hobbesian state in Western Democracies, Ivan Manokha