Ombudsman recommends amendment of the law on retention of data

The Ombudsman addressed a recommendation to the Minister of Justice to amend Act No. 32/2008 of 17 July on the retention of data generated or processed in the context of the provision of communications services publicly available electronic communications networks or public communications networks.
This law transposed into the national legal order a European directive (Directive 2006/24 / EC) declared invalid in 2014 by the Court of Justice of the European Union (CJEU).
In the ECJ’s view, reaffirmed two years later, in the determination of the data retention obligation – traffic data, location data and other related data concerning citizens’ electronic communications, with the exception of their content – the Directive violated fundamental rights enshrined in Charter of Fundamental Rights of the European Union, because, when taken as a whole, such data are likely to allow very precise conclusions to be drawn about the private life of individuals.
According to the Court, a restriction on fundamental rights, such as respect for private and family life, can only be upheld if it complies with the principle of proportionality, and it is therefore not permissible for "widespread and undifferentiated preservation of all traffic data and all the location data of all subscribers and registered users in relation to all electronic means of communication", as allowed by the directive.
As soon as the directive is declared invalid by the CJEU in 2014, it is as if it had never existed. However, in Portugal that decision had no effect on the national law of transposition. In effect, Law 32/2008 remains in force unchanged, imposing on providers of publicly available electronic communications services or a public communications network the conservation for one year of all electronic communications data of all the citizens.
As it stands, Portuguese law violates the Charter of Fundamental Rights of the European Union.
Furthermore, following the two judgments of the CJEU on this matter, the National Data Protection Commission – the entity that should be controlling the conditions of data retention in Portugal – decided to "disengage" the law in situations submitted for its consideration.
In these circumstances, it is legitimate to think that telecommunications operators can no longer have any disincentive to breach their obligations, which – according to European Union law – must meet particularly high protection and safety criteria. 
The Ombudsman’s recommendation, in order to bring the law into conformity with the requirements deriving from the Charter of Fundamental Rights of the European Union and remedy the lack of supervision currently in place in Portugal, follows a complaint filed by an association on digital rights.

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