Electronic communications data retention · Judgment 57/2021
Belgian Constitutional Court · 22 April 2021
A telephone record can reveal contact with a lawyer, a doctor or a support organisation without revealing a word of the conversation. Bar and civil-society organisations were among those who challenged the Belgian law requiring providers to retain communications data broadly, including data about people under no suspicion.
What the Belgian court did
The judges first asked the EU Court of Justice to interpret the relevant EU protections. They then annulled central provisions of the Belgian law of 29 May 2016. General, indiscriminate retention under the challenged regime could not be justified across the range of purposes it served. The distinction matters because targeted retention, or measures responding to a sufficiently serious national-security threat under strict conditions, raises different questions.
Separate collection, retention and access
In an individual dispute, first identify which data were kept, under what law and for how long. Next ask who actually obtained access and under which authorisation. The 2021 decision concerned the legislation before the court and did not itself exclude particular material from every criminal file. Evidence obtained in a specific investigation requires its own procedural assessment.
Read judgment 57/2021 and the court’s order · Read the court’s explanation of the limits on retention
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