In April 2014 the Court of Justice of the European Union (CJEU) declared invalid the Data Retention Directive that unified the rules of the retention of selective data by Internet and telephone services and determined the accessibility of data by authorities in the member states. Despite the content of the judgment, the Hungarian act allowing data retention is still in force. In October, 2014 the HCLU started litigation against two major service providers in order to force the Hungarian Constitutional Court (CC) to repeal the unlawful act.
The Hungarian Act on Electronic Communications establishes that providers must retain telephone and Internet communications traffic data for six months. This rule concerns "only" the caller identity, caller location, the frequency of communications and other data of this kind but not the contents of communications. However, such data allows for drawing accurate conclusions regarding the private lives, everyday habits, travel patterns and social environment of concerned persons, even without knowing the contents of communications. Therefore, data retention of this kind constitutes a serious intervention into the private sphere of concerned persons as well as an infringement of the fundamental right to the protection of personal data.
In both European and national law, data retention is sought to be justified by the need to prosecute serious crimes and the fight against terrorism. At the same time, in accordance with the ruling of the Court of Justice of the EU, the Hungarian act defining the rules of data retention is not compatible with Hungarian constitutional requirements, either, for breaching the limits of the proportionality criteria. Due to the reform of the Hungarian law and, specifically, the jurisdiction of CC, HCLU cannot directly refer to the CC to establish that the legislation on the obligation of data retention is against the Fundamental Law of Hungary.
Instead, the HCLU requested in writing the Internet or telephone service providers to eliminate any retained traffic data. Then the service provider refused this request based on the current Hungarian legislation. We brought court action against service providers concerning the elimination of data, and during the trial, HCLU requested the judge to directly refer to the CC (judicial initiative for norm control in a concrete case): a positive aspect of this move is that it can take place already during the first instance proceedings, and the CC has to decide upon the claim within strict deadlines (with urgency and no later than in 90 days!). At the ordinary court, on the first trial day the arguments related to constitutional matters convinced the judge and our initiative was accepted and the case was referred to the CC. We just received the official arguments of the judge sent to the CC. Due to the legal regime, the decision of the CC will have a direct impact on the case and general effect on the constitutional matters related to data retention.
We are seeking urgent support from organizations active in the field to file an amicus curiae brief. In particular, it would be extremely helpful to have amicus briefs covering constitutional arguments about data retention which were taken into consideration in other countries. If you were willing to contribute to the case, please note the short deadline of the CC and contact Fanny Hidvégi (Head of Data Protection Program of HCLU, email@example.com) at your earliest convenience.