The usual cycle goes like this:
1: A law is passed. Everybody is sure it will be killed in court.
2: It is killed in court.
3: Go to 1.
4: Politicians learn from the experience. /* unreachable code */
Germany’s planned data retention law has run into more trouble. But not, despite media reports, because the European Commission is “threatening to take Germany to court”, nor even because of a court ruling against the EU-wide Data Retention Directive. On Tuesday, German stick-it-to-zer-Mann news site Netzpolitik published a …
Classic problem with the collision of digital services and historical legal frameworks. See also the kerfuffle with Microsoft and Ireland.
Regardless of your thoughts on the data retention bill, this is an interesting conundrum. Surely the German government is quite within its rights to ensure that information on German citizens remains physically within their own borders? What if this were a tax or health database? Presumably, having servers physically located on German soil gives them greater powers - for example the ability to physically seize equipment if the requirement arose.
Is the EU expecting that if Germany is not allowed to legislate to keep information within its own borders, that they are granted reciprocal powers to raid physical locations in other member states?
There is nothing stopping the German's re-drafting the legislation to state that the "contested" data is stored within the EU, just no Germany, after all there is a over-arching EU data privacy law to protect the German populace which are a subset of the EU.
No I think the EU (and certainly me) are hoping that the Germans will abide by the laws they have approved via the EU. Or to put it another way, the EU (and member countries) are very happy to start bashing the "Free Trade" baton in the iron fist when it is advantageous, to true test of "rule of law" is when you have to apply the law when it is disadvantageous to the applicant.
I suspect there are exceptions for national security and the Germans may well argue that there is no barrier to a foreign company setting up a data center in Germany.
Luxembourg already has quite restrictive rules for banking data and these have been allowed to stand.
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