In its judgement, the Court of Justice of the European Union has declared the Data Retention Directive invalid. Based on the Directive, service providers were keeping phone records and other personal data for 6 months. We have decided to undertake the lengthy process of actually eliminating this European law in Hungary.
Regulations of the EU Directive on storing data were implemented into Hungarian legislation by the Electronic Communications Act. Based on this act, mobile and landline telephone as well as internet service providers are obliged to store a variety of our personal data for 6 months. An extremely wide range of data is being retained: phone records, duration of calls, cell information, name of recipients of emails, time of their sending or arrival, etc. These together are called 'big data' that represent the focus of the interception scandal started by Snowden. It is important to note, however that, unlike in the case of the surveillance scandal in the US, recording (or storing) the contents of telephone or electronic communication is not allowed under the Directive or the Hungarian law.
Although the contents of the communication cannot be retained, it is possible to keep count of whom, how often, and by what means the costumer contacted, just like of the duration and place of the interaction. The Court has established that "these data, taken together, can provide precise information on the private lives of users whose data are being retained, including the habits of everyday life, permanent or temporary place of residence, daily and other trips, activities, social relationships and social environments frequented".
Data are being retained in order to secure access to them by investigation authorities, the public prosecution, the courts and the national security service, without informing concerned persons about the incidental access of their data by the authorities.
All this constitutes a serious injury of fundamental rights related to the protection of privacy and personal data. HCLU has long contested the Hungarian law implementing the Data Retention Directive. Having the Court made its decision, it is now for national legislators to make the next step in influencing national data retention regulations.
HCLU maintains that data retention regulations prescribed by the Electronic Communications Act violate privacy rights. The judgement of the Court of Justice of the EU has created a new legal situation by claiming that the regulation prescribing data retention obligations for Member States is contradictory with fundamental rights.
Pursuing action within the national legal framework allowed us to request the elimination of unlawful regulations from the Constitutional Court by, first, calling upon service providers to delete retained data and subsequently, in case they would not do so -- which is quite probable considering that the Hungarian law they can cite is still in force -- filing a suit for the deletion of data. When the lawsuit is lost as determined by a legally binding decision, we can finally challenge the legal regulation itself through the court decision. The whole process takes at least one and a half years long, given that it is no longer available for any person to access the Constitutional Court when a legal rule is deemed unconstitutional. HCLU has already undertaken such an action, however, our proposition ended up in the bin when the scope of authority of the Constitutional Court was transformed. It is now time to resume our proposition, dust it off and present it to the Constitutional Court.