Jurisdiction(s):
United Kingdom

CJEU Privacy International: UK agencies’ bulk communications data acquisition under TA 1984 s 94 breaches ePrivacy Directive; national security derogations strictly limited; implications for surveillance powers and EU adequacy

Published on: 07 October 2020

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Article summary

Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others Case C‑623/17 What are the practical implications of this case?

From a legal standpoint, the ruling requires the UK to re‑evaluate how and when it acquires bulk communications data from internet and telecoms providers, and to define firmer constraints on its monitoring powers. Existing approaches that involve transferring such data on a blanket and non‑targeted basis are at odds with EU law. Careful consideration must be given to the thresholds that must be satisfied before issuing notices to transfer data under the Telecommunications Act 1984 (TA 1984), together with the material and procedural safeguards that will regulate the onward transfer and use of that information. Notably, there will probably need to be an explicit nexus between the necessity for the particular datasets sought and the protection of National Security. A broader consequence for professionals advising on data protection and privacy as the Brexit transition draws to a close will be assessing the probable impact of this ruling on the UK's prospects of securing an adequacy decision, including how that outcome may influence advice provided during the period across data protection and privacy matters within UK and EU...

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