The fate of the Data Retention Directive: about mass surveillance and fundamental rights in the EU legal order

Abstract

The chapter explores the fate of the Data Retention Directive, the Digital Rights Ireland case and its implications for mass surveillance and data protection. After the Introduction, setting the issue within the context of Snowden’s revelations, the chapter presents the Data Retention Directive and the domestic resistance it has met; it then moves to highlight the judgment, its reasoning and motivations. The chapter discusses the judgment’s implications both in the perspective of national data retention legislation and in the European perspective: by outlawing generalized mass surveillance the Digital Rights Ireland judgment sets benchmarks having consequences also for other European instruments, from the PNR to the Safe Harbour Scheme (recently invalidated by the Schrems judgment), indicating that the judgment is therefore displaying some extraterritorial consequences. The chapter concludes reflecting on the judgment in the perspective of Kadi, reading it as the Court of Justice’s contribution on European counter-terrorism policies and ‘state of exception’.