[HN Gopher] Germany's blanket data retention law is illegal, EU ...
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Germany's blanket data retention law is illegal, EU top court says
Author : tyrion
Score : 239 points
Date : 2022-09-20 13:17 UTC (9 hours ago)
(HTM) web link (www.reuters.com)
(TXT) w3m dump (www.reuters.com)
| karlerss wrote:
| The orginal ECJ press release:
| https://curia.europa.eu/jcms/upload/docs/application/pdf/202...
| layer8 wrote:
| Note that the ruling defines a number of exemptions. See the text
| following "However, EU law does not preclude national legislation
| which" in the press release:
| https://curia.europa.eu/jcms/upload/docs/application/pdf/202...
|
| In particular, service providers will probably still have to
| maintain the infrastructure to activate "general and
| indiscriminate" data retention on demand.
| kurupt213 wrote:
| I would think it's also against the spirit of the bill of rights,
| yet here we are in America, with secret courts reviewing secret
| surveillance and meta data.
| aksss wrote:
| And it's not even a secret process half the time - witness the
| recent conversations about CBP imaging phones of intl
| travellers.
| rmbyrro wrote:
| Is the ECJ kind of a Supreme Court that can overturn member state
| laws and rulings?
|
| I had the impression member states were 100% sovereign within the
| EU...
| arlort wrote:
| Define sovereignty
|
| Member states have agency to leave the EU whenever they'd like
| if they wish not to be bound by agreed upon laws
| chippiewill wrote:
| Member states are sovereign insofar as the EU institutions only
| have jurisdiction because the member states allow them to do
| so. EU law only applies because local law says it applies. The
| ECJ is the highest court in any of the member countries because
| the law in those countries say it is.
|
| This differs from the situation in the US where Texas couldn't
| pass an amendment to their state constitution declaring that
| they are no longer subject to federal law. State law is
| subordinate to federal law / the US constitution.
| Longhanks wrote:
| Couldn't Texas exit the US in the same way that European
| countries can exit the EU?
| sveme wrote:
| Out of curiosity: can Swiss cantons leave the Swiss
| confederation?
| Archelaos wrote:
| The 26 cantons are mentioned in the Swiss constitution by
| name. If one wants to leave, the constitution would have
| to be changed. So a canton can only leave, if a majority
| of the whole people as well as the cantons voted in
| favour.
| anony999 wrote:
| Technically the answer is yes. In practice I believe there
| would be civil war before that happens.
| kwhitefoot wrote:
| > Technically the answer is yes.
|
| Really? You mean that there is something in the US
| Constitution that explicitly allows a state to secede?
|
| "In the public debate over the Nullification Crisis the
| separate issue of secession was also discussed. James
| Madison, often referred to as "The Father of the
| Constitution", strongly opposed the argument that
| secession was permitted by the Constitution.[29] In a
| March 15, 1833, letter to Daniel Webster (congratulating
| him on a speech opposing nullification), Madison
| discussed "revolution" versus "secession":
| I return my thanks for the copy of your late very
| powerful Speech in the Senate of the United S. It crushes
| "nullification" and must hasten the abandonment of
| "Secession". But this dodges the blow by confounding the
| claim to secede at will, with the right of seceding from
| intolerable oppression. The former answers itself, being
| a violation, without cause, of a faith solemnly pledged.
| The latter is another name only for revolution, about
| which there is no theoretic controversy."
|
| https://en.wikipedia.org/wiki/Secession_in_the_United_Sta
| tes
| IntrepidWorm wrote:
| If the threat of secession requires going to war over, it
| would seem that no, secession is not a legally supported
| process.
| Archelaos wrote:
| But could it not be possible to allow the secession of a
| state by an ammentment to the constition?
| ben_w wrote:
| No, the EU has a specific process for leaving by asking,
| while the US states can only leave if a sufficient number
| of the other states agree to it.
|
| The EU isn't really a country, it's a free trade agreement
| with an unusually democratic (by the standard of FTAs)
| process for updating its own rules.
| bhupy wrote:
| The EU isn't a country (yet), but it's a political union
| that increasingly walks and quacks like a country.
|
| https://www.youtube.com/watch?v=_lj127TKu4Q
| effie wrote:
| Indeed it is not a country. But democratic process is a
| very wrong word here, even with the adjective
| "representative". The EU process for updating its own
| rules is a bureaucracy directed by prime ministers, and
| those influenced/controlled by powerful groups. E.g.
| Scholz and Macron pushing for federalization and
| weakening the power of states - this is great for EU
| apparatus and those wanting to make it stronger, but
| state citizens do not want this.
| ben_w wrote:
| Can you name any trade agreement with a _more_ democratic
| process?
| M2Ys4U wrote:
| >The EU isn't really a country, it's a free trade
| agreement with an unusually democratic (by the standard
| of FTAs) process for updating its own rules.
|
| The EU isn't just a free trade agreement and it has
| _never_ been just a free trade agreement. It has _always_
| been a political endeavour.
|
| Of course that doesn't make it a country or a nation
| state at all, but let's not go too far in the other
| direction when trying to describe it.
| ben_w wrote:
| _Every_ free trade agreement is a political endeavour.
| The entire _concept_ of free trade is in part where the
| term "liberal" originates from (not that the term should
| be considered a guide to current policies of parties with
| that title, lots has changed since it was Liberals vs
| Whigs).
| gpderetta wrote:
| EU treaties explicitly say that a member can leave them (in
| particular article 50 of the Treaty of the EU).
|
| In general a country can't get out of an international
| treaty unless the treaty itself has provisions for it. Of
| course the only way to enforce an international treaty, if
| threats or sanctions are not enough, is war.
| arlort wrote:
| No
|
| There is no codified legal process for a US state to leave
| the Union, and the only previous attempt caused a civil war
|
| A member of the EU has both an implicit right to withdraw
| from the treaties (deriving from international customary
| law around treaties) and an explicit legal path to follow.
| A process which they control in their entirety (as in they
| can't be forced to stay longer than they wish by the other
| countries and can't be forced to leave earlier than the
| prescribed deadline)
| jfk13 wrote:
| Some states tried that in the 1860s. It was traumatic.
| drooopy wrote:
| I hate to break it to you, but there is no such thing as a 100%
| sovereign country anywhere in the world.
| anony999 wrote:
| Who is 100% sovereign? Any kind of treaty makes you less
| "sovereign". I believe it's the same question about freedom.
| Are you a free person if you have a job, pay mortgage or marry
| someone?
| MichaelCollins wrote:
| > _Who is 100% sovereign?_
|
| 100%? Only those with a nuclear deterrent, and maybe not even
| them. Otherwise, there is always a bigger fish.
|
| Edit: I can see some people don't believe me. Do you really
| think treaties are more than paper if you don't have force to
| back them up? The US has threatened to invade the Hague if
| they try to charge Americans with war crimes. Went beyond
| mere threats in fact, congress and Bush the younger enshrined
| this threat in Federal Law.
| theplumber wrote:
| >> Do you really think treaties are more than paper if you
| don't have force to back them up?
|
| There is a foce that can build up. If the U.S starts going
| rough someone else will take its place. We've already seen
| pieces moving during Trump's term. U.S's soft power helps
| it more than you think.
|
| North Korea is more "sovereign" than the U.S. in your book.
| Good economic and political relations with your neighbours
| can make you more powerful than being a sovereign lunatic.
| AdrianB1 wrote:
| The member states are not 100% sovereign within the EU, there
| are some mechanisms to control it. For example, Romania (EU
| member country) has a provision that international treaties
| signed by the country override local legislation, so that EU
| directives - while not directly in effect - are above local
| legislation.
|
| Practically, if a national law is found to be not compliant
| with the EU legislation, the country has some time to adjust it
| to make it compliant or to repel it. In court cases, the
| Constitutional Court can directly strike the provision in the
| law or the entire law, as appropriate.
| sofixa wrote:
| > I had the impression member states were 100% sovereign within
| the EU...
|
| ~80-90% depending on how you measure.
|
| The judiciary of all countries is technically under the ECJ
| jurisdiction. People can sue their countries, and local court
| decisions can be appealed to the European court structure
| (ECJ/ECHR).
|
| That was in fact one of the Brexit talking points, judiciary
| independence.
| ectopod wrote:
| Just to be clear, the ECHR is not an EU court and brexit
| Britain is still under its jurisdiction.
|
| https://en.wikipedia.org/wiki/European_Convention_on_Human_R.
| ..
| M2Ys4U wrote:
| And one cannot appeal a case from the court of a member
| state to the CJEU. Member states' courts can (in some cases
| must) refer specific questions of law, but that is not an
| appeal by any party to the dispute.
| dagw wrote:
| ECJ can only rule on EU laws. So as such they are not
| overturning any German laws, just stating the the German law is
| not in compliance with EU regulations. What that means in
| practice varies a lot from case to case, but in general the EU
| has the power to fine members that are in breach of EU
| regulations.
|
| For practical reasons most EU countries want to be in
| compliance with EU law and will often follow ECJ
| recommendations and change their own laws if found to not be
| compliant. Also many EU countries have laws that essentially
| state that all their laws must comply with EU law.
|
| The other option is to apply for an explicit opt out of certain
| a EU regulation that you feel is incompatible with your own
| laws.
| tarakat wrote:
| We've seen where this leads to in the US, where the federal
| government financially extorts states to fall in line on
| issues that are supposed to be up to the states, such as what
| happened with speed limits:
|
| https://en.wikipedia.org/wiki/Speed_limits_in_the_United_Sta.
| ..
| int_19h wrote:
| The difference is that EU member states have the right to
| leave if they don't think the arrangement benefits them.
| tarakat wrote:
| And we must ensure that choice remains economically
| viable, and not just for the largest member states.
| Because a union maintained by compulsion, even economic
| compulsion, is not a union, but an empire.
| JumpCrisscross wrote:
| > _many EU countries have laws that essentially state that
| all their laws must comply with EU law_
|
| Isn't granting the ECJ jurisdiction is a requirement of EU
| membership?
| Longhanks wrote:
| EU treaties are not a constitution and the constitution the
| people gives itself stands above all.
| JumpCrisscross wrote:
| > _EU treaties are not a constitution and the
| constitution the people gives itself stands above all_
|
| Germany [1] and Hungary [2] played with this fire. In
| summary, no.
|
| Treaties have force of law. If a country improperly
| ratified their EU treaties, they need to amend their
| constitution (if it exists) or admit they never properly
| joined the EU in the first place. Given the latter means
| economic collapse for most EU members, it's not a hard
| choice.
|
| [1] https://www.jurist.org/commentary/2020/06/nick-kenny-
| german-...
|
| [2] https://www.reuters.com/world/first-eu-seen-moving-
| cut-money...
| Longhanks wrote:
| Once the people choose to no longer follow the EU Supreme
| Court, thus, as a follow up, no longer choose to follow
| the EU treaties, they exit the EU just as the UK did.
|
| No country is or can be forced to be a EU member.
|
| Just because there are economic implications does not
| mean the EU treaties are above the countries'
| constitutions the people actually chose to enact.
| SiempreViernes wrote:
| This is true of any law, there isn't actually anything
| except common agreement that constitutions should be
| treated more seriously giving them extra status, and
| there isn't anything but the consent of (enough) people
| giving laws any power: nobody is ever forced to follow
| any law, they are simply punished if they don't.
|
| However, once you decide to stay within the law it is
| indeed possible to have EU treaties stand above the
| constitution. In situations where you've added bits in
| your constitution that the EU treaty has priority, acting
| like this isn't true is simply breaking the law.
| Xylakant wrote:
| But if your constitution is incompatible with the
| treaties required to be member in the EU, you essentially
| have two options: change your constitution or not be
| member of the EU.
| sokoloff wrote:
| Or, leave both the constitution and treaties in place and
| wait to see if the EU bothers to take adverse action.
| NoboruWataya wrote:
| It's a bit more complicated than this, because the
| treaties don't really have any mechanism for unilaterally
| expelling a member state and there is no precedent for
| doing so. The reality is there is no easy answer to what
| happens when a national constitution is incompatible with
| EU law.
| M2Ys4U wrote:
| Member states can, in theory, be suspended, though we've
| seen when it comes to Hungary and Poland that mechanism
| is quite hard to use (as it requires unanimity of all of
| the other member states) and it's considered the "nuclear
| option".
| einpoklum wrote:
| And here I was thinking that German (and to some extent
| French) politico-economic interests stand above all.
| Silly me...
| ben_w wrote:
| Right now the political and economic interests of Germany
| and France is a strong EU. Won't always be true, though I
| can't foresee the circumstances when it might change.
|
| Likewise, for most of my life, my personal political and
| economic interests included a strong UK (still does even
| though I moved to Germany) and USA even though I never
| lived there.
| NoboruWataya wrote:
| The supremacy of EU law is a pretty interesting one. It is a
| fundamental principle of the EU that EU law takes
| primacy/supremacy over national law (in areas where the EU has
| competence). How this actually works in practice can be a bit
| fuzzy, because the EU is certainly not going to send tanks into
| a member state's capital to enforce its laws.
|
| As I understand it, the way this usually works is by national
| law explicitly endorsing EU law (usually at the level of the
| national constitution) and stating that in the event of any
| contradiction between EU law and domestic law, EU law will
| prevail. So EU law is "supreme" in practice, but that supremacy
| is granted/recognised under the domestic constitutional order.
|
| In some countries, this recognition is limited, such that
| national courts will not permit EU law to override certain
| aspects of the national constitutional order. When that
| happens, there is really no easy solution.
|
| An interesting recent example is
| https://www.politico.eu/article/brussels-closes-case-against...
| where the German court found that an ECB bond-buying programme
| was unconstitutional and in doing so refused to follow a prior
| decision of the ECJ.
|
| Another consequence of this approach to supremacy is that
| significant changes to the EU treaties require a constitutional
| amendment in Ireland, which requires a referendum. To my
| knowledge Ireland is the only country to have such a binding
| legal requirement, with the effect that a number of amendments
| to the treaties have in the past been delayed or defeated by
| the Irish public voting against them.
| T-A wrote:
| > Is the ECJ kind of a Supreme Court that can overturn member
| state laws and rulings?
|
| Yes. See e.g.
|
| https://www.citizensinformation.ie/en/government_in_ireland/...
| tokai wrote:
| The sovereign members of the EU have ratified treaties of
| European Union law themself.
| Longhanks wrote:
| * some of the then-elected governments
|
| There was a national referendum before the Lisbon treaties
| that was declined by the Netherlands and France, which in
| turn "watered down" the EU constitution into the Lisbon
| treaties which are now in use, which were then ratified
| without any national votes.
|
| As the German politician Martin Scholz once said, if the EU
| were to apply for an EU membership, it would get declined
| because of a lack of a democratic foundation.
| jltsiren wrote:
| > As the German politician Martin Scholz once said, if the
| EU were to apply for an EU membership, it would get
| declined because of a lack of a democratic foundation.
|
| That's the way it should be.
|
| In a democratic state, the state itself is sovereign, while
| the citizens are not. The rights of the citizens depend on
| the constitution, which can be changed according to a
| democratic process. The EU is a union of sovereign states.
| Due to that sovereignty, decision-making in the EU cannot
| be fully democratic, as that would violate the sovereign
| rights of the member states.
| Longhanks wrote:
| Well, since I live in Switzerland, I am happy to
| disagree. Swiss people vote on many things multiple times
| per year and consider this a fundamental right and _this_
| the way it should be.
| jltsiren wrote:
| A sufficient majority of citizens can change the
| constitution and take that right away from you. Because
| you live in a democratic state, you do not have sovereign
| rights.
| MichaelCollins wrote:
| Just the same; sufficient number of states can take those
| 'sovereign rights' away from a country. In the context of
| a discussion about Germany, shouldn't this be obvious?
| jltsiren wrote:
| There are many levels of government from local to
| multinational. At most one of those levels can be
| sovereign, and democracy makes most sense on that level.
| On other levels, some degree of democracy is possible,
| but it's always subject to the consent of the sovereign
| state.
|
| EU member states have voluntarily agreed that in some
| situations, EU law takes priority over national law. But
| because the member states are sovereign, it's up to them
| to decide how to proceed when EU and national laws are in
| conflict. The EU has only limited means to sanction
| member states that breach their laws. It cannot arrest
| and prosecute German lawmakers. It can't declare German
| laws invalid, except to the extent German institutions
| voluntarily follow EU rulings. It can't forcibly rewrite
| German laws. And in extreme situations, it can't declare
| Germany's Constitution unconstitutional and invalid, and
| it can't forcibly rewrite it.
| sveme wrote:
| The difference is between direct and representative
| democracy, not of democracy itself.
| xyzzyz wrote:
| A good mental model is that EU works pretty much like US did
| 100 years ago. The US states were roughly as sovereign as EU
| states (with some important differences, especially in defense
| and immigration), and US federal government was similarly
| powerful to EU government.
|
| This has, of course, changed over the last century, and US
| states lost most of their sovereignty. I predict the same will
| happen to EU states over the next century.
| clarionbell wrote:
| That would be in 1920s and states were far from sovereign
| back then. Maybe 1820s, then one could argue the union was
| more 'loose'. But even then, the union was pretty tight.
| Hence constant issue of slavery in federal law.
| Tangurena2 wrote:
| Archive link: https://archive.ph/oKMPL
| zackees wrote:
| omgomgomgomg wrote:
| Yet another time Germany needs external intervention measures to
| get in line.
|
| Time and time again, history has proven everywhere that if the
| population does not keep their politicians in line, they will get
| drunk from all the power.The people do not even vote reasonably,
| so it is very difficult.
|
| Have these lawmakers ever presented good results which can be
| attributed to their work?
| Sebb767 wrote:
| > The people do not even vote reasonably, so it is very
| difficult.
|
| You get three votes [0] every four to five years, where you
| need to vouch for someone from a short list to make all the
| choices to represent you. And this is actually the good case,
| in the US it's reduced to just two options. Deciding whether
| someone votes reasonably is very hard when they weigh certain
| decisions (and how likely politicians are to keep their
| promises) completely different.
|
| Just as an example, you might say that you think climate change
| is the most important topic overall right now, so you vote for
| the German Green party - except, of course, if you doubt that
| they'll actually change much or if you think that nuclear power
| is the answer, which they don't like. So you think of voting
| for a small party, but they'll be in the opposition at best,
| but most likely not even hit 5%, making your vote nothing more
| than a gesture completely ignored by the ruling parties. So
| what's the unreasonable choice here?
|
| Long story short, what I'm trying to say is that whenever I
| heard the accusation of people voting unreasonably, so far, the
| actual argument always was "people disagree with my [clearly
| optimal] opinion or voting strategy".
|
| [0] Local, federal and state each.
| numlock86 wrote:
| Is this from the same guys who want to get rid of cryptography
| for the public or at least get some backdoors?
| gpderetta wrote:
| The ECJ never 'wanted to get rid of cryptography' nor has the
| power to do so. It has the power to declare that such a law
| would violate EU treaties though.
| nonethewiser wrote:
| Is Germany a sovereign country if an international court presides
| over them?
|
| This tends to get brushed aside by people defending the EU. Isn't
| this a step in the direction of the EU becoming something like
| the United States? There tends to be a lot of double-speak on
| this: "That's not true" and "it's a good thing" at the same time.
| layer8 wrote:
| Germany is free to leave the EU if they don't want to follow
| the accords anymore. Its being subject to EU law is voluntary.
| karatinversion wrote:
| It is not. The whole point of the EU is to pool sovereignty for
| common benefit. Germany is constrained in things it can do: it
| cannot ban the importing of French wine, give huge subsidies to
| its domestic steel industry to gain market share in Europe, or
| stop Bulgarians entering the country.
|
| Of course, there is no EU army enforcing EU law, so a
| sufficiently damn-the-consequences German government could do
| these things, at the cost of destroying the single market.
| radicaldreamer wrote:
| The EU's stick is financial
| gpderetta wrote:
| Any country that signs any form of international agreement is
| giving away part of its sovereignty in exchange of some
| benefit. It is just a matter of degrees.
| dane-pgp wrote:
| I'd be interested to know if the EU law that the ECJ relied on
| differs from or goes further than the case law from the European
| Court of Human Rights that the UK is still a member of.
|
| A ruling against mass data retention in the UK could help Privacy
| International in their on-going case against the government for
| its mass surveillance and use of "bulk personal datasets".
|
| https://www.privacyinternational.org/long-read/4598/briefing...
| gpderetta wrote:
| Mass data retention and surveillance has been ruled illegal
| multiple times both by ECJ and ECHR (as it is in direct
| contravention with the right to privacy in article 8). In
| particular UK is still supposedly bound by the ECHR even after
| Brexit. Unsurprisingly, EU governments and UK in particular, do
| not care, and there is only so much these courts can do to
| enforce their judgments.
| tgsovlerkhgsel wrote:
| Doesn't sound great:
|
| "allows, for the purposes of safeguarding national security, an
| instruction to be given requiring providers of electronic
| communications services to retain, generally and
| indiscriminately, traffic and location data in situations where
| the Member State concerned is confronted with a serious threat
| to national security that is shown to be genuine and present or
| foreseeable. Such an instruction must be subject to effective
| review, either by a court or by an independent administrative
| body, and can be given only for a period that is limited in
| time to what is strictly necessary, but which may be extended
| if that threat persists"
|
| -- that is just asking for a "perma-emergency" to justify such
| an exception for a long time until the court can (years later)
| maybe decide that that goes go far.
| dane-pgp wrote:
| > just asking for a "perma-emergency" to justify such an
| exception for a long time
|
| For context, I thought I'd look up the current UK "National
| Threat Level", and it is apparently "Substantial", which is
| the middle value on a 5 point scale, and the lowest it has
| ever been since the system was introduced in 2006.
|
| https://en.wikipedia.org/wiki/UK_Threat_Levels
| BlueTemplar wrote:
| In related news, the EUropean Data Protection supervisory
| authorities are complaining that their budget isn't being
| significantly increased even as the complaints they have to
| process have exploded in the recent years :
|
| https://euobserver.com/tickers/156038
| int_19h wrote:
| There's a curious comment on that article from a person in
| support of that retention law:
|
| "Google can do that [blanket data collection], my Chinese mobile
| phone manufacturer too, why shouldn't the government be able to
| do it?"
|
| Something to ponder when we talk about data collection by private
| parties: like it or not, it does provide justification for
| governments doing the same.
| superjan wrote:
| It works the other way too: If a politician objects to FAANG
| privacy violations, they should not introduce laws that allow
| such violations themselves.
| Sebb767 wrote:
| Of course they can. It makes sense for the government to be
| able to arrest people, but I absolutely don't want to give
| corporations that right (especially not FAANG - judicial
| systems a bad enough as is, but Google's customer support is
| still a downgrade).
|
| The government and the private sector are very different and
| what one of them can and can't do is not necessarily related
| to whether the other should or shouldn't be able to.
| novok wrote:
| Google and others are also not allowed to do blanket data
| collection by law, they are restricted in how and who's data
| they can collect with stuff like the GDPR.
|
| You can debate how effective it is, but they are not allowed to
| do it, and nobody should be allowed to either.
| uhuruity wrote:
| Governments have a monopoly on (legal) violence, and by default
| it's not possible to move countries (that is, unless you get a
| visa or live in a free movement area). I think it's reasonable
| to hold governments to a qualitatively higher standard than
| companies.
| eivarv wrote:
| No, it does not - for two reasons: - Two wrongs
| don't make a right: Someone behaving unethical does not excuse
| unethical behavior from someone else. - There is a
| difference in the power dynamics of the relationships: Consumer
| and service provider VS citizen and state.
|
| If anything, laws and right should be strengthened to
| explicitly ban this behavior.
| int_19h wrote:
| You may disagree with that justification, sure. The point is
| that there are people who are convinced by it.
| eivarv wrote:
| Whether people are convinced or not - your claim was that
| it provided "justification".
|
| My point is that it does no such thing - it doesn't hold up
| as a valid argument (which really is the bare minimum for
| something to even be considered as potentially true).
| ghiculescu wrote:
| You can opt out of using Google or buying Chinese phones more
| easily than you can opt out of being German. Governments have
| more unchecked power and should be held to a higher standard
| accordingly.
| immibis wrote:
| In the EU, you can very easily opt out of living in Germany.
| moonchrome wrote:
| That's like saying you can solve a pest infestation problem
| in your house by blowing it up.
| caskstrength wrote:
| Because neither Google nor your Chinese mobile phone
| manufacturer can put you in jail.
| sva_ wrote:
| I posted this earlier:
|
| https://news.ycombinator.com/item?id=32909698
|
| I don't care about the points, just think it is a bit weird that
| a promotional commercial company post is now on the frontpage
| instead of a more neutral news site.
|
| Although now, Reuters would probably be the better source than
| what was available earlier today:
|
| https://www.reuters.com/technology/indiscriminate-data-reten...
| [deleted]
| dang wrote:
| Good point. We've changed the URL to the Reuters article now.
| Submitted URL was https://mailbox.org/en/post/european-court-
| of-justice-overtu.... Thanks!
| shadowgovt wrote:
| Interesting that it was a German law. I was under the impression
| that German law was pretty conservative on data collection.
| bakuninsbart wrote:
| In general, yes, and I think Germans are (at least in theory)
| much more protective of their data than others. Nonetheless,
| every government since the late 00s has been trying to push
| this through in one form or another.
|
| I suspect there is heavy lobbying from within the professional
| bureaucracy (including police and IC) for this. Possibly also
| diplomatic pressure from countries like the US.
| moffkalast wrote:
| Gestapo always trying to sneak its way back in silently in
| the background. And it's not just Germany either, it's quite
| annoying how backsliding into an anti-democratic surveillance
| state is now the default and needs to be constantly fought.
|
| Perhaps it's "always has been", it's just laughably easy to
| do with software these days.
| narag wrote:
| Don't forget the companies that provide the means to
| eavesdrop everybody.
| therealmarv wrote:
| hold on, what Germany wanted to do (blanket data retention) is a
| reality for a long time in other states in EU. There are many
| countries collecting for 6+ months all connection data (e.g.
| France or Spain). A map is in this German article from 2019
|
| https://netzpolitik.org/2019/vorratsdatenspeicherung-in-euro...
|
| So this becomes illegal in other EU member states now too? Does
| anybody have any inside how this will change EU data retention in
| general?
| eivarv wrote:
| It has been illegal _at least_ since the Grand Chamber
| judgments on the cases of "Big Brother Watch" and "Centrum for
| Rattvisa" last year [0]. Though, really, the outcome was fairly
| predictable for anyone following the field.
|
| TLDR; Continuous "General and indiscriminate retention" is not
| compatible with EU fundamental rights.
|
| [0]: https://europeanlawblog.eu/2021/06/08/big-brother-watch-
| and-...
| unity1001 wrote:
| I believe you have to retain tax-related data (customer
| invoices, bills, payments etc) for ~2 years or however long
| your local jurisdisction requires. I don't think that will go
| away since such laws mirror the long-standing laws used in
| normal accounting. This should be related to non-ecommerce
| related data.
| BlueTemplar wrote:
| And laws about the data collection, collation, and usage by
| governments date quite a way back...
|
| For instance, the 1974 French SAFARI scandal,
|
| where the government wanted to build a centralized computer
| database that would collect country-wide administrative data,
| starting with the 400 (physical) police files, and IIRC with a
| single social security number for each citizen,
|
| has caused such an uproar that the project was abandoned and the
| data privacy regulator CNIL was soon created.
|
| (Note the totalitarianism (aka "high modernism") inherent in
| computers, by the way what they show tends to be accepted as
| truth, the way they don't have any common sense, the way their
| digital nature tends to classify people into strict categories,
| which then become set in stone by their limited capacity to
| forget, the way the free flow of information turns qualitative
| and how they give a lot of power to the State while democracies
| try to limit this power.)
|
| Sadly, we've recently seen its failure - caused in a big way by
| it being stripped of its power in 2004, leaving only a
| consultative (non-)power - in 2010 a law about "a general
| principle of information sharing between administrations" has
| still been created.
|
| Some notable worries are about the preceding 2007 law that
| authorized ethnic statistics - while personal data treatment
| using ethnic or racial data, and adding race and religion values
| in the administrative files are still forbidden - the potential
| of ethnic data becoming racial data is still very high.
|
| Another worry is about the genetic prints file : created in 2002
| and first limited to sexual criminals, it has since been extended
| to a whopping 5% of the population, 87% of which have NOT (yet,
| quite a lot of the debate being how long these files should be
| kept) been condemned for the reason they got added to the file.
| It gets worse, and shows how quantitative can become qualitative
| : because genetic information is NOT independent between family
| members, a staggering third of the population ends up having its
| genetic identifiers at least partially stored in these files.
|
| A 2022 project (submission date ending 2 weeks ago) to
| interconnect the digital prints file with the criminal records
| file has mentioned a potential future project of connecting both
| with the generic prints file... (among others) with also a
| policemen-suggested requirement that "the solution be compatible
| with remote work [...] not requiring strong authentication".
| Semaphor wrote:
| Our data retention laws get overturned all the time. Usually
| already by our constitutional courts. Sadly our politicians don't
| care much and don't get punished, so they just try it again and
| again and again and usually it's in effect for a while before the
| courts give judgement.
|
| I really can't explain where Politikverdrossenheit (political
| apathy) comes from.
|
| edit: The last sentence is sarcasm
| pgorczak wrote:
| The process makes sense from a separation of powers
| perspective. When there's an especially fine line between what
| legislative wants and (constitutional) judicative allows, there
| has to be some rejections.
|
| This is probably one of the cases where lawmakers feel some
| spite about constitutional courts exerting too much influence
| over their work. It would be easier if they'd just talk about
| it before going through the whole process but I guess creating
| frustration is part of the point here.
| goodrubyist wrote:
| That's not how it works at least in the US, but I don't know
| about Germany. SCOTUS claims that the judicial system is not
| for reviewing all the acts passed for constitutionality, but
| (as per Article III) only addressing specific harms brought
| up by individuals (the requirement for standing). This is
| from a 1992 precedent:
|
| 1. The plaintiff must have suffered an "injury in fact,"
| meaning that the injury is of a legally protected interest
| which is (a) concrete and particularized and (b) actual or
| imminent 2. There must be a causal connection between the
| injury and the conduct brought before the court 3. It must be
| likely, rather than speculative, that a favorable decision by
| the court will redress the injury
|
| Talking in advance about what law is constitutional would be
| perverse under such system (I love the standing doctrine, btw
| and so does the Chief Justice).
| pgorczak wrote:
| AFAICT it really is different in Germany. The
| constitutional court can also be called by other courts, by
| the government or by parliament to check already passed
| laws.
| ajsnigrutin wrote:
| > I really can't explain where Politikverdrossenheit (political
| apathy) comes from.
|
| I understand... it's simple... someone does something bad,
| nothing happens to them... bad thing again... nothing
| happens... people protest... nothing happens... bad thing
| again.. nothing happens...
|
| If this was some other timeline, and people brought guillotines
| out every couple of years and "dealt with" the "bad"
| politicians in "the french way", politicians themselves would
| be calling for jail sentances, because they'd atleast be alive
| in there.
|
| Otherwise, i live in a different country, and the political
| situation is the same.
| petre wrote:
| This only happens in France but without guillotines: strikes
| + yellow gillet protests. The Germans are too well behaved to
| do anything or the political process is much too civilised to
| employ any form of civil disobedience.
| Tarsul wrote:
| I think it also has something to do with that our (German)
| media is not as radicalised. And Germans don't like
| facebook, so there's probably less options/danger also to
| radicalise through social media. And usually the poor are
| not as poor as in other countries. But we will see what
| happens this winter.
| tut-urut-utut wrote:
| Don't worry. Today's newspapers reports that our fine
| ministerin is already looking to find and exploit loopholes in
| the judgement and will try to implement as much as possible
| [1].
|
| It's a shame. We tend to criticize EU for a million valid
| reasons, but once in a while when they do something right, our
| government first reflex is to just ignore it.
|
| [1] (German)
| https://www.zeit.de/politik/deutschland/2022-09/vorratsdaten...
| nani8ot wrote:
| The coalition she's part of already said that they are
| against indiscriminate data retention, so I'd say the chances
| of her getting her will are slim.
|
| Though if the next cabinet in a few years includes the CDU
| (christian democrats), they'll try again.
| geewee wrote:
| Seems like we've had basically the exact same case in Denmark.
| A law gets overturned by the ECJ and they just make another law
| that's slightly different. Then they say there's a certain
| "process risk" regarding the law which basically means it might
| not be compatible with EU law at all. Pisses me off.
| themitigating wrote:
| Political apathy comes from the political party that would most
| benefit from low turnout.
|
| If you are disappointed with politics that is a reason to vote.
| If you don't care, that's a valid reason not to vote
| Semaphor wrote:
| Been preaching that for years, but I can certainly see where
| "it doesn't matter anyway" comes from.
| em-bee wrote:
| but it doesn't matter. all parties pander to a majority to
| get votes. minority interests are ignored everywhere, and
| consequently none of the available parties have any
| redeeming qualities that make them a better choice than the
| others.
|
| the whole system is broken. the parties waste most of their
| energy to fight each other instead of cooperating to
| actually solve problems. i want to throw out the whole lot
| and replace it with a system that is actually
| representative of the communities. is there any party
| anywhere that can achieve that?
| earth-adventure wrote:
| At this point in time, on this planet - not as far as I
| know. It's against human nature. It's why I love Star
| Trek TNG, as cheeky as it can be at times, it's always
| reasoning about human behavior and defining its
| shortcomings. And trying to overcome those.
|
| Maybe the Swiss with their voting on all issues system,
| are a step in the right direction.
| whimsicalism wrote:
| Is there not a limit case?
|
| Would you tell people in China, "if you are disappointed with
| politics, vote in your People's Congress elections?"
| kevin_thibedeau wrote:
| CCP members theoretically have more agency than just
| voting. Every one of them can advance issues at the peoples
| congress.
| themitigating wrote:
| Assuming there's a choice, I'm not familiar with Chinese
| elections, then yes.
|
| Why not vote? What is the advantage of that?
| djbebs wrote:
| Voting provides legitimacy to the winner of the election
| and to the election process itself.
|
| If you disagree with both of those things, voting has no
| positive and results only in negatives.
| themitigating wrote:
| If it has no positives what are the negatives?
| function_seven wrote:
| Providing legitimacy to parties or institutions that you
| reject.
|
| Simpsons did it: "Don't blame me, I voted for Kodos"
| RegnisGnaw wrote:
| Of course there is a choice. You get "Person A" from the
| CCP or "Person B" from the CCP.
|
| I mean even in the DPRK, you can vote for whoever you
| want. Its what happens afterwards..
| themitigating wrote:
| So you are claiming in the DPRK voting is rigged? Do you
| have proof of this?
| bonzini wrote:
| In DPRK there is only one choice on the ballot that you
| can optionally cross out to disapprove. That doesn't
| happen often or at all; I suppose they'd know who does it
| based on the time it takes to vote.
| whimsicalism wrote:
| People might view it as giving legitimacy to a process.
| themitigating wrote:
| The process of voting is legitimate.
|
| Does giving legitimacy to voting accomplish anytime? What
| about protesting the system by not voting, does that do
| anything?
| djbebs wrote:
| Totally disagree.
| themitigating wrote:
| Why?
| VLM wrote:
| The way they've done it for decades where I live, is
| party A and party B serve the same master on all
| substantial issues, so pick a "hot button" social issue
| that neither side will ever do anything about and have A
| and B take opposing views. Then do some gatekeeping where
| both parties and the media agree to push hard propaganda
| that voting 3rd party is "throwing your vote away".
|
| The people in charge are the ones who pick the two almost
| identical candidates. There will be no change in economic
| or foreign policy regardless of winner.
|
| (Edited, the other way is to push hard core identity
| politics where demographic groups are owned by certain
| parties, so voting has all the legitimacy of a mere
| census. The only way to influence policy would be having
| (or not having) children)
| whimsicalism wrote:
| > The process of voting is legitimate.
|
| What do you mean by this? If I (a dictator) were to hold
| an election but require 90% approval to unseat me, that
| would be a "legitimate" process because it includes
| voting?
|
| Do you not understand what I am saying?
|
| > What about protesting the system by not voting, does
| that do anything?
|
| Arguably yes. Afghanistan's state legitimacy collapsed as
| basically fewer than 10% of people voted in any of it's
| elections and then the government fell.
| themitigating wrote:
| What event in Afghanistan are you referring to and can
| you prove it was because of a lack of legitimacy due to
| lack of voter participation?
| whimsicalism wrote:
| The fall of the government in Kabul. I'm not saying this
| is the single causal event, but lower than 10% voting
| definitely contributed to a lack of legitimacy of the
| central govt leading to its fall.
| MichaelCollins wrote:
| > _Political apathy comes from the political party that would
| most benefit from low turnout._
|
| This is very reductive, you've lost sight of the trees and
| only see the forest. Politically apathetic people have a wide
| array of personal reasons for being the way they are. You
| don't know what's going on in all of their lives, you can't
| reduce all of their life experiences and feelings into one
| big conspiracy.
| hok wrote:
| The fact that a court overturns a law is proof that our
| democracy actually works.
|
| No need to be 'verdrossen'.
|
| It would be worse if the courts just approves all laws the
| government conceives.
| Semaphor wrote:
| The issue is, that the process to overturn a law takes years,
| but introducing the same law (with a slightly different
| paint) again takes months.
|
| Or for some reductio ad absurdum: Slavery is legal for 10
| months per year, but every October the Slavery Legalization
| law gets struck down by the courts, proof that our democracy
| works.
| kccqzy wrote:
| Why does it take so long though? In the United States
| courts often issue a preliminary injunction or temporary
| restraining order to stop the enforcement of law. This way
| the courts can take their time in deciding a case while the
| new law does not get enforced.
| [deleted]
| croes wrote:
| Some bad laws aren't overturned
| retcore wrote:
| From 51:25 in this BBC documentary [0] you're introduced to
| Horst Herold [1] the President of the BKA (Federal police) who
| instigated the creation of the Suchsystem Inpol sowie Analysen
| [2] to catch the Baader Meinhoff gang by trawling citizens
| data. Until the violence of the Baader Meinhoff gang, there was
| sufficient popular sentiment including in politics, against any
| Federal use of power as prohibited by the constitution. This
| was effectively reversed with the assassination of Alfred
| Herrhausen [3] using a enfilade of shaped charges to slice
| through his armoured limousine. Herold created the first
| European data dragnet to identify anyone who profiled similarly
| to his quarry. The gang were apprehended only using indirect
| evidence ,[edit: of their whereabouts]. Violence and the
| ensuing police reactions disheartened and suppressed opposition
| to Federal government enforcement.
|
| [0] https://www.bbc.co.uk/iplayer/episode/p093wy1r/cant-get-
| you-... ,
|
| [1] https://en.m.wikipedia.org/wiki/Horst_Herold ,
|
| [2] https://de.m.wikipedia.org/wiki/INPOL ,
|
| [3] https://en.m.wikipedia.org/wiki/Alfred_Herrhausen
| croes wrote:
| Don't forget the part Peter Urbach played as agent
| provocateur in the Red Army Faction.
|
| https://en.m.wikipedia.org/wiki/Peter_Urbach
|
| Or later the Celle Hole
|
| https://en.m.wikipedia.org/wiki/Celle_Hole
| amelius wrote:
| > I really can't explain where Politikverdrossenheit (political
| apathy) comes from.
|
| It comes from voter indifference.
| philipov wrote:
| This is a tautology and doesn't answer the question.
| Etheryte wrote:
| Out of curiosity, doesn't Germany have the equivalent of a
| constitutional watchdog? For example in Estonia, the president
| fills this role (as do some other constitutions, but the
| president is a good example in this context). The president is
| otherwise a purely ceremonial figurehead in Estonia, but one
| functional role they fill is that before any new bill becomes
| law, they have to sign off on it and declare it's
| constitutional. If they find it not to be, they can send it
| back to the parliament (or to the highest national court,
| depending on the circumstances).
| joker99 wrote:
| We do, pretty much the same as your situation. However, it
| doesn't happen very often that the Bundesprasident actually
| does this. Their role is almost purely ceremonial and I could
| count the cases on one hand where they used this power. Some
| legal professionals argue, that this check is basically a
| ceremonial one as well.
| tomrod wrote:
| If one thing I've learned the past decade, it is that
| "ceremonial" functions can be disrupted by people who don't
| respect the precedent.
| nielsole wrote:
| https://www.sueddeutsche.de/politik/hintergrund-
| bundespraesi...
|
| A list of seven rejected laws. I think there was one more
| in the last decade.
| pelasaco wrote:
| Me as german citizen would be interested to know how much such
| processes costs from our taxes money. From bringing such law
| again to debate, convicting the parlament to vote it, then
| approving it, then the whole courts costs... I'm not sure why
| at least once a year we see that there.. regardless of who is
| in the government.. Is it Lobby driven?
| salawat wrote:
| It comes from fundamental constraints on signal propagation,
| socially reinforced bias towards abstaining or following anyone
| who sounds like they have expertise, confict aversion, the huge
| overhead involved with actually becoming known enough by people
| to get past change aversion, and a general willingness to
| accept that the emperor is far away even though in today's
| world they aren't.
|
| We're literally living in a time where "global" namespace
| changes are made willy nilly by people who don't even spend the
| time reading everything they may have an effect on by doing
| them, which is just accepted as being "impossible".
|
| Further, the only people with the time/resources to engage in
| politics in a tangible way are pgobably the most disconnected
| people from the way of life for the polises they are shaping.
|
| Human beings are ruthless energy optimizers (biological
| constraint), and the cognitive load of actually productive
| political engagement is absurdly high. Thus, people with
| literally anything else to do avoid it, or find it pointless,
| leaving only those so bereft of anything else to do to be the
| most impactful on that arena. Which in turn creates more for
| the disengaged to have to do to keep them from getting in the
| way...
|
| It's a vicious cycle.
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