On December 21, 2016, the European Court of Justice ("ECJ") issued a judgment concerning national data retention laws, deciding that national data retention laws for fighting crime violate European Union law if they provide for the "general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication." It thus confirmed the opinion held by Tele2 and other telecoms carriers that such a broad national data retention law would violate EU law. This judgment can have far-reaching impacts on the applicability of other national data retention laws in Germany and other EU Member States. Even if the content of communication may not be retained, the Court confirmed that the retention of traffic and location data could nonetheless have an effect on the use of means of electronic communication and thus on users' exercise of their freedom of expression. The Court concluded that, under very strict conditions, national data retention laws may be justified. In particular, Member States may enact provisions that: (i) serve to fight serious crime, (ii) provide for targeted retention, and (iii) are strictly necessary. The retention order must be subject to court review, and the user must be notified as soon as the notification would no longer jeopardize the investigations. Retained data must stay within the EU.
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