Data Retention in Europe and Beyond Law and Policy in the Aftermath of an Invalidated Directive

In the aftermath of the invalidated Data Retention Directive, the Court of Justice of the European Union (CJEU) published extensive case law that shaped the rules, requirements, and safeguards on the retention of traffic and location data and their subsequent access for law enforcement purposes in accordance with EU law. Against this backdrop, Data Retention in Europe and Beyond unites leading scholars and practitioners to offer a cutting-edge and multifaceted analysis of issues relating to data retention. The chapters in this book explore the development of the EU case law, the interaction with European Court of Human Rights (ECtHR) jurisprudence, the interplay between data retention and mass surveillance, the proportionality principle in the CJEU jurisprudence rulings, and data retention in the proposed ePrivacy Regulation. The book offers eleven country-specific analyses of European Member States as well as chapters on the data protection regimes of India, Japan, and the US. Further chapters examine the role of the courts in the context of data retention and discuss epistemic (in)justice. The book also contains extensive contributions on automated analysis of retained data by means of algorithms, and retention as intrinsic facet of administrative and surveillance vulnerability. Comprehensive and informative, this volume not only provides a critical assessment of legal and policy developments, but also will inform policymakers on the potential future for data retention regulation in the European Union and beyond.

1 - Introduction: Data Retention in the EU and Beyond: An Evolving Landscape
2 - The Evolution of the CJEU Case Law on Data Retention: Towards the Regulation of Access
3 - Data Retention and the Judicial Parameters of Mass Surveillance in EU Law
4 - A Critical Comment on Proportionality in the Mass Surveillance Jurisprudence of the CJEU and the ECtHR
5 - Proportionality and Strict Proportionality in the Case-law of the Court of Justice of the European Union on Data Retention
6 - Data Retention in the Proposed ePrivacy Regulation Caught between the Well-established Case Law of the Court of Justice and the Deep Disagreements of the EU Legislature: For a Legally Compliant Way Forward
7 - Data Retention in Germany: Not a Never-ending Story After All?
8 - The Long Way to the Compliance of Data Retention with European Union Law: The Italian Case
9 - Consequences of the Collapse of a Directive: The Aftermath of CJEU Data Retention Case Law on Cypriot Jurisprudence
10 - Data Retention in Ireland: When European Law Meets National Recalcitrance
11 - A Clash Between the French System and the CJEU Case Law on Data Retention?
12 - Data Retention Amid the Erosion of the Constitutional Order: The Case of Poland
13 - The Impact-or No Impact-of the CJEU Case Law on Data Retention in Spain
14 - Data Retention and Law Enforcement in the Netherlands
15 - To Retain or (not) to Retain Data? The Danish Case
16 - Belgium's New Data Retention Legislation: Third Time Lucky, or Three Strikes and You're Out?
17 - The Swedish Data Retention Saga: From EU Initiator to Penalty Payments, Reviewed and Revised National Rules
18 - Data Retention and Law Enforcement Access to Personal Data in India
19 - Regulating Data Retention in Japan
20 - Regulating Access: A Brief Overview of US Regulations on Access to Communications Data
21 - The Judicialization of EU Data Retention Law: Epistemic Injustice and the Construction of an Unequal Surveillance Regime
22 - Data Retention as a Matter of Constitutional Law
23 - Passenger Name Records: Necessary Data Retention to Fight Crime and Terrorism, or Threatening Privacy and Data Protection?
24 - Data Retention and Automated Processing of Personal Data: Unpacking the CJEU's Approach
25 - Automated Analysis in the AFSJ and Digital Single Market Monitoring: An Effaced Nexus
26 - On Administrative and Surveillance Vulnerability and the Digital Government in the EU
27 - Data Retention and the 'Chilling Effect' in the Context of Mass Surveillance and a Tacit Sift Towards a Hobbesian state in Western Democracies

Eleni Kosta is a Professor of Technology Law and Human Rights at the Tilburg Institute for Law, Technology and Society (TILT, Tilburg University). In 2024, she co-edited a commentary on The EU Law Enforcement Directive (LED). In 2014, Professor Kosta was awarded a personal research grant for research on privacy and surveillance by the Dutch Research Organisation (VENI/NWO). She is a member of KYSATS, the Cyprus for the recognition of higher education qualifications. Eleni also collaborates as associate with the lawfirm timelex. Irene Kamara is an Assistant Professor of Cybercrime Law and Human Rights at the Tilburg Institute for Law, Technology and Society (TILT, Tilburg University) and an affiliated researcher at Vrije Universiteit Brussel. She has conducted research for the European Commission, the Dutch National Cyber Security Agency, the European Cybersecurity Agency among others. She is a member of the ENISA Experts List, the EDPB experts pool, and the CEN-CENELEC/BTWG 3 'STAIR' on STAndardization, Innovation and Research. Irene was the winner of the 2021 Standards+Innovation Individual Researcher award of the European Standardisation Organisations and is also a qualified attorney-at-law.