“Anyone limiting fundamental rights must provide proof.”
From former federal data protection officer Peter Schaar’s blog post just before the European Court of Justice announced its groundbreaking, wonderful and “remarkably clear” decision on 08 Apr 2014 overturning mandatory dragnet data surveillance because it violates fundamental human rights [Grundrechte].
“Anyone limiting fundamental rights must provide proof. They must provide evidence that the limitations to personal freedom are necessary in the predominant interest of the general public—that’s what our constitution requires. This principle also applies in the European Union, at the latest since 2009 when the E.U. Charter of Fundamental Rights became enforceable law of the Member States with the Treaty of Lisbon. This guideline’s origins go back before Lisbon. In December 2013, the attorney general at the European Court of Justice said in his vote that he was of the opinion that the guideline violated the protection of the private sphere guaranteed in Article 8 of the Charter of Fundamental Rights.
“The authors and proponents of the mandatory retention of communications traffic data [Vorratsdatenspeicherung] have not yet provided proof of the necessity and efficacy, to this day. But surely it would have been easy for them to provide the evidence, after eight years—if their arguments were accurate ones. It ought to have been easy to show that law enforcement had been harmed by the German Constitutional Court’s finding in 2010 that the Vorratsdatenspeicherung law was unconstitutional. Did conviction rates fall in Germany? Is Germany worse off than its neighbors who implemented Vorratsdatenspeicherung? No. Furthermore, neither the governments of the Member States nor the European Commission were able to provide conclusive proof in any other way for the necessity of Vorratsdatenspeicherung.”
(Vair GROONED rechh tah eye n shrenked, issed bev ICE flichh tichh.)