Human Rights in the Digital Age: The European Court of Justice Ruling in the Data Retention Case and Its Lessons for Privacy and Surveillance in the United States

2017 ◽  
Vol 6 (1) ◽  
pp. 77-104
Author(s):  
Amy Lai

This article will first examine why the right to be forgotten should be recognized as a universal right by drawing upon natural law theories. Using the recent decision by the European Court of Justice as a starting point, it will then explore whether this right can be recognized in the United States and Canada. Often held to be similar in terms of cultures and values, the two neighbors in fact have very different free speech and privacy traditions. This article will conduct a comparative study of the u.s. and Canada to explain why this right can be accommodated by their laws and traditions from a theoretical perspective. Finally, it will adopt the framework of judicial globalization to explore why and to what extent the right to be forgotten will be recognized in these two jurisdictions.


Author(s):  
Nico van Eijk

The point of departure for this chapter is the decision of the European Court of Justice in the Digital Rights Ireland case, which annulled the European Data Retention Directive, in part because the use of retained data was not made subject to independent oversight. Next, it examines judgments from the national courts of the Netherlands and the UK, also focusing on the independent oversight issue, declaring invalid the data retention laws of those two countries. From the Digital Rights Ireland case and others, seven standards for oversight of intelligence services can be drawn: the oversight should be complete; it should encompass all stages of the intelligence cycle; it should be independent; it should take place prior to the imposition of a measure; it should be able to declare a measure unlawful and to provide redress; it should incorporate the adversary principle; and it should have sufficient resources.


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