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Pre-CPDP event: ‘State surveillance and the evolution of the ePrivacy reform: the hidden agenda behind a fundamental rights instrument’

Location: Les Halles de Schaerbeek, Brussels
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On 21 January 2020, the Brussels Privacy Hub will organise a panel about ePrivacy for the opening evening of the CPDP Computers, Privacy and Data Protection conference.

There is an urgent need to update the current, outdated EU ePrivacy legislation.  First, there is a need to reform the current rules to be in line with the data protection law reform that culminated in the GDPR.  Second, there is a need to rephrase the current ePrivacy Directive to have more of a fundamental rights focus, especially given the application of the EU Charter of Fundamental Rights.  Third, there is a need to reflect enormous changes in technology since the current ePrivacy Directive started applying in 2002.  This review has been happening for years, but the EU Council has continually watered down the privacy protections in the text and, on 22 November 2019, rejected the text as a whole, meaning its future is unclear.  Despite this, the EU nonetheless needs an updated ePrivacy law.

One particularly problematic aspect of the earlier draft of the ePrivacy Regulation was the article (then Article 11) on ‘restrictions’.  If not carefully drafted, this article could enable problematic indiscriminate retention of personal data, which the Court of Justice of the EU has previously ruled is almost always unlawful in its landmark 2014 Digital Rights Ireland (C-293/12 and C-594/12) and 2016 Tele2-Watson (C-203/15 and C-698/15) cases.

This potential mass data retention could enable worrisome State surveillance, particularly as some versions of the proposed ePrivacy reform's scope excluded data processing for law enforcement purposes.  This general topic deserves more focus than it has received.  How has the evolution of the suggested texts moved to allow this gap; what are the specific issues; and what are recommendations to change it?  After years of attempting to find consensus on a text, the European Commission will present a revised ePrivacy proposal as part of the Croatian Presidency, but the underlying normative issues still remain: what is the way forward?  This event will analyse the extent to which the ePrivacy reform and its evolution lends itself to State surveillance or instead protects important State interests whilst better safeguarding fundamental rights.  It aims, too, to make recommendations for what should happen in the next part of this ongoing process.

For more information and registration, click here: