Wednesday, March 21, 2007

OECD data protection: enforcement

See report and Working Party home page.

2006 Sources on Data Protection

A Busch (2006) 3 SCRIPT-ed (4) 304 "From Safe Harbour to the Rough Sea? Privacy Disputes across the Atlantic"
J Rauhofer (2006) 3 SCRIPT-ed (4) 322 "Just because you're paranoid, doesn't mean they're not after you: Legislative developments in relation to the mandatory retention of communications data in the European Union"
P Leith (2006) 3 SCRIPT-ed (4) 389 Squeezing Information out of the Information Commissioner: Mapping and measuring through online public registers"
R Bendrath and R F Jørgensen (2006) 3 SCRIPT-ed (4) 355 "The World Summit on the Information Society - Privacy not Found?"
C Ncube (2006) 3 SCRIPT-ed (4) 344"Watching the watcher: recent developments in privacy regulation and cyber-surveillance in South Africa"
C Prins (2006) 3 SCRIPT-ed (4) 270 "When personal data, behavior and virtual identities become a commodity: Would a property rights approach matter?"
Joshua L Colburn (2006) 91 Minnesota Law Review (Nov) 241 "'Don't Read This If It's Not for You': The Legal Inadequacies of Modern Approaches to E-mail Privacy" (Lexis)
Orin S Kerr (2007) University of Chicago Law Review "Enforcing Law Online"
Rebecca Eve Bolin (2006) 24 Yale Law and Policy Review "Opting Out of Spam: A Domain Level Do-Not-Spam Registry"

Monday, March 12, 2007

Reading week 10

In the CMR you will find various articles by Reidenberg - read at least one, and note his comments on safe harbor provisions.

Wednesday, March 07, 2007

.Net Passport and Airline passenger data

In Week 9 we begin our investigation into Safe Harbours, by examining the Microsoft .NET and a US-EU agreement on airline passenger data.

This short Law Review article is useful as a summary of the .NET issue, the EC has a Press Release and the Article 29 Working Party has a Working Document.

On airline passenger data, there is a much longer body of work, with an Opinion of the Article 29 WP in 2003 extending through to a further Opinion in 2007. The 2007 Opinion was necessary because in 2006 the European Court of Justice overturned the 2004 Decision to allow an Agreement with the US: see Joined Cases C-317/04 and C-318/04.

Monday, March 05, 2007

Useful links on SISII

From Statewatch.

Friday, March 02, 2007


01.03.2007 Press release: The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Heglas v. the Czech Republic (application no. 5935/02).
The Court held unanimously that there had been
· a violation of Article 8 of the European Convention on Human Rights (right to respect for private life) as regards the use of a list of telephone calls made by the applicant on his mobile phone;
· a violation of Article 8 on account of the recording by means of a dictaphone of a conversation between the applicant and one A.B.;
· no violation of Article 6 § 1 (right to a fair trial).
Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant 1,018 euros for costs and expenses. (The judgment is available only in French.)
1. Principal facts
The applicant, Vojtĕch Heglas, is a Czech national who was born in 1976. He is at present imprisoned in Valdice (Czech Republic). In January 2000 a woman was attacked and her handbag stolen. It contained a large sum of money (about EUR 8,730) intended as payment in a property transaction. On the next day the police arrested A.M. and took him into custody. Under Articles 88-1 and 88-2 of the Code of Criminal Procedure (“the CPP”), the applicant’s mobile telephone was placed under surveillance from 21 January to 21 February 2000. In addition, on 24 January 2000, A.B., A.M.’s girlfriend, was fitted by the police with a listening device hidden under her clothing; she met the applicant and recorded on magnetic tape the ensuing conversation, in the course of which the applicant admitted that he had organised the robbery with the help of A.M. On 12 July 2000 the Prague City Court (mĕstský soud) found the defendants guilty of robbery and sentenced the applicant to nine years’ imprisonment, unsuspended. Among other evidence, it based its judgment on the following two exhibits: (1) a list of the telephone calls made with the mobile phones of the two defendants showing that they had called each other just before and just after the attack on 19 January 2000, and (2) a transcription of the conversation between A.B. and the applicant, which the court described as crucial evidence.
The defendants appealed, citing in particular the illegality of the transcriptions of the conversation between the applicant and A.B. and of the list of the calls they had made to each other. The Prague High Court dismissed their appeals. The applicant also lodged a constitutional appeal, arguing that the recording of his conversation with A.B. and its use as evidence had breached Articles 6 and 8 of the European Convention on Human Rights; the Constitutional Court dismissed his appeal on 5 September 2001, holding, among other considerations, that the courts had convicted him on the basis of a number of pieces of evidence whose substantiation and assessment were not open to doubt. Later the Constitutional Court likewise dismissed an appeal by A.M.
2. Procedure and composition of the Court
The application was lodged on 2 January 2002. Judgment was given by a Chamber of 7 judges, composed as follows: Peer Lorenzen (Danish), President, Snejana Botoucharova (Bulgarian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Margarita Tsatsa-Nikolovska (citizen of “the former Yugoslav Republic of Macedonia”), Rait Maruste (Estonian), Mark Villiger (Swiss)2, judges, and also Claudia Westerdiek, Section Registrar.
3. Summary of the judgment3
The applicant alleged that the use of a listening device hidden under A.B.’s clothing and the recording of his conversation with her, and of the list of telephone calls between him and A.M., had breached Articles 8 and 6 § 1 of the Convention.
Decision of the Court
Article 8 of the Convention
As regards use of the list of telephone calls between the applicant and A.M. The Court considered that the use of such a list in the context of the criminal proceedings against the applicant had interfered with his right to respect for his private life. It noted that the interception and recording of the applicant’s telephone conversations had been ordered by a judge in January 2000 by virtue of Article 88 of the CCP. However, Article 88a of the CCP, which empowered the criminal investigation authorities to obtain a list of calls, among other evidence, entered into force only on 1 January 2002. As to the Telecommunications Act relied on by the Czech Government, section 84(7) of which authorises the criminal investigation authorities to obtain lists of telephone calls or other forms of telecommunication, that had come into force only on 1 July 2000.
Even supposing that Czech law had provided a legal basis for drawing up a list of the applicant’s telephone calls, the Court noted that the Czech courts had been supplied with a list of calls covering the two days preceding the date of the interception order. That being so, the Court considered that the interference was not “in accordance with the law” and concluded that there had been a violation of Article 8.
As regards the dictaphone recording of a conversation between the applicant and A.B. The Court considered that this recording and its use had interfered with the applicant’s right to respect for his private life.
On the basis of the information available to it, the Court considered that the measure was not governed by a “law” satisfying the criteria laid down by its case-law, but rather by a practice which could not be regarded as a specific legal basis setting forth sufficiently precise conditions for such interference as regards the admissibility, scope, control and use of the information thus collected.
That being so, the Court considered that the interference was not “in accordance with the law” and concluded that there had been a violation of Article 8.
Article 6 of the Convention: Having regard to its case-law, the Court considered that the use by the Czech authorities of the recording complained of and the list of telephone calls had not infringed the applicant’s right to a fair trial. It accordingly held that there had been no violation of Article 6.