Summary

The issues of retention and use of factual data relating to electronic communication (hereinafter also communications data) have been repeatedly discussed in Estonian legal literature. As a common keyword throughout, there is an argument that through the retention of communications data, society is under blanket surveillance and this means unjustified interference with the fundamental rights and freedoms of persons. This argument is defended with the views in the case of Court of Justice Digital Rights Ireland and Tele2 Sverige/Watson. It is found that the general retention of communications data is unacceptable and the protection of fundamental rights and freedoms inadequate. At the same time, these approaches have been biased. The main focus of criticism is aimed narrowly at the privacy and personal data protection need. The importance of communications data, in particular their relevance from the security and safety viewpoint, the wider goal of which is to ensure fundamental rights and freedoms to all persons, has been overlooked. There is a lack of analysis of the legal and practical correctness of the Court of Justice viewpoints and substantiated debates where the solution to be sought is balance between fundamental rights and security and not their confrontation.

This article aims at offering a different angle and discussing the relevance of the retention of communications data based on the balance of security and fundamental rights and freedoms. In addition to a different viewpoint, this article highlights the bottlenecks of the decisions of the Court of Justice and tries to rebut the populist arguments presented in legal literature and public media that are intended to amplify the surveillance society argument of the state.