The Lives of Other Judges: Effects of the Romanian Data Retention Judgment

Abstract

The Constitutional Court of Romania has recently published a decision that found the implementing law of Directive 2006/24/CE unconstitutional. The conclusions of the Romanian judges and their reasoning are already praised by human rights activists and digital rights groups as one of the most important victories in an age when privacy rights are too easily thwarted in exchange for a chimerical sense of safety. The decision examines the law in light of its compliance with the basic rights contained in art. 26 (privacy) and art. 28 (secret of correspondence). It asserts the fundamental nature of these rights with direct reference to, inter alia, art. 8 of the European Convention of Human Rights to which Romania is part since 1994, art. 12 of the Universal Declaration of Human Rights and art. 17 of the International Covenant on Civil and Political Rights. The Constitutional Court criticized the vagueness of several articles in the law which did not define in a clear and explicit manner the concepts of “related data” and “threats to national security” and stated that a continuous positive obligation on telecom companies to retain indiscriminately communication data of all citizens voids the basic rights to privacy and secrecy of correspondence of their very substance.