[HN Gopher] Germany's blanket data retention law is illegal, EU ...
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       Germany's blanket data retention law is illegal, EU top court says
        
       Author : tyrion
       Score  : 239 points
       Date   : 2022-09-20 13:17 UTC (9 hours ago)
        
 (HTM) web link (www.reuters.com)
 (TXT) w3m dump (www.reuters.com)
        
       | karlerss wrote:
       | The orginal ECJ press release:
       | https://curia.europa.eu/jcms/upload/docs/application/pdf/202...
        
       | layer8 wrote:
       | Note that the ruling defines a number of exemptions. See the text
       | following "However, EU law does not preclude national legislation
       | which" in the press release:
       | https://curia.europa.eu/jcms/upload/docs/application/pdf/202...
       | 
       | In particular, service providers will probably still have to
       | maintain the infrastructure to activate "general and
       | indiscriminate" data retention on demand.
        
       | kurupt213 wrote:
       | I would think it's also against the spirit of the bill of rights,
       | yet here we are in America, with secret courts reviewing secret
       | surveillance and meta data.
        
         | aksss wrote:
         | And it's not even a secret process half the time - witness the
         | recent conversations about CBP imaging phones of intl
         | travellers.
        
       | rmbyrro wrote:
       | Is the ECJ kind of a Supreme Court that can overturn member state
       | laws and rulings?
       | 
       | I had the impression member states were 100% sovereign within the
       | EU...
        
         | arlort wrote:
         | Define sovereignty
         | 
         | Member states have agency to leave the EU whenever they'd like
         | if they wish not to be bound by agreed upon laws
        
         | chippiewill wrote:
         | Member states are sovereign insofar as the EU institutions only
         | have jurisdiction because the member states allow them to do
         | so. EU law only applies because local law says it applies. The
         | ECJ is the highest court in any of the member countries because
         | the law in those countries say it is.
         | 
         | This differs from the situation in the US where Texas couldn't
         | pass an amendment to their state constitution declaring that
         | they are no longer subject to federal law. State law is
         | subordinate to federal law / the US constitution.
        
           | Longhanks wrote:
           | Couldn't Texas exit the US in the same way that European
           | countries can exit the EU?
        
             | sveme wrote:
             | Out of curiosity: can Swiss cantons leave the Swiss
             | confederation?
        
               | Archelaos wrote:
               | The 26 cantons are mentioned in the Swiss constitution by
               | name. If one wants to leave, the constitution would have
               | to be changed. So a canton can only leave, if a majority
               | of the whole people as well as the cantons voted in
               | favour.
        
             | anony999 wrote:
             | Technically the answer is yes. In practice I believe there
             | would be civil war before that happens.
        
               | kwhitefoot wrote:
               | > Technically the answer is yes.
               | 
               | Really? You mean that there is something in the US
               | Constitution that explicitly allows a state to secede?
               | 
               | "In the public debate over the Nullification Crisis the
               | separate issue of secession was also discussed. James
               | Madison, often referred to as "The Father of the
               | Constitution", strongly opposed the argument that
               | secession was permitted by the Constitution.[29] In a
               | March 15, 1833, letter to Daniel Webster (congratulating
               | him on a speech opposing nullification), Madison
               | discussed "revolution" versus "secession":
               | I return my thanks for the copy of your late very
               | powerful Speech in the Senate of the United S. It crushes
               | "nullification" and must hasten the abandonment of
               | "Secession". But this dodges the blow by confounding the
               | claim to secede at will, with the right of seceding from
               | intolerable oppression. The former answers itself, being
               | a violation, without cause, of a faith solemnly pledged.
               | The latter is another name only for revolution, about
               | which there is no theoretic controversy."
               | 
               | https://en.wikipedia.org/wiki/Secession_in_the_United_Sta
               | tes
        
               | IntrepidWorm wrote:
               | If the threat of secession requires going to war over, it
               | would seem that no, secession is not a legally supported
               | process.
        
               | Archelaos wrote:
               | But could it not be possible to allow the secession of a
               | state by an ammentment to the constition?
        
             | ben_w wrote:
             | No, the EU has a specific process for leaving by asking,
             | while the US states can only leave if a sufficient number
             | of the other states agree to it.
             | 
             | The EU isn't really a country, it's a free trade agreement
             | with an unusually democratic (by the standard of FTAs)
             | process for updating its own rules.
        
               | bhupy wrote:
               | The EU isn't a country (yet), but it's a political union
               | that increasingly walks and quacks like a country.
               | 
               | https://www.youtube.com/watch?v=_lj127TKu4Q
        
               | effie wrote:
               | Indeed it is not a country. But democratic process is a
               | very wrong word here, even with the adjective
               | "representative". The EU process for updating its own
               | rules is a bureaucracy directed by prime ministers, and
               | those influenced/controlled by powerful groups. E.g.
               | Scholz and Macron pushing for federalization and
               | weakening the power of states - this is great for EU
               | apparatus and those wanting to make it stronger, but
               | state citizens do not want this.
        
               | ben_w wrote:
               | Can you name any trade agreement with a _more_ democratic
               | process?
        
               | M2Ys4U wrote:
               | >The EU isn't really a country, it's a free trade
               | agreement with an unusually democratic (by the standard
               | of FTAs) process for updating its own rules.
               | 
               | The EU isn't just a free trade agreement and it has
               | _never_ been just a free trade agreement. It has _always_
               | been a political endeavour.
               | 
               | Of course that doesn't make it a country or a nation
               | state at all, but let's not go too far in the other
               | direction when trying to describe it.
        
               | ben_w wrote:
               | _Every_ free trade agreement is a political endeavour.
               | The entire _concept_ of free trade is in part where the
               | term  "liberal" originates from (not that the term should
               | be considered a guide to current policies of parties with
               | that title, lots has changed since it was Liberals vs
               | Whigs).
        
             | gpderetta wrote:
             | EU treaties explicitly say that a member can leave them (in
             | particular article 50 of the Treaty of the EU).
             | 
             | In general a country can't get out of an international
             | treaty unless the treaty itself has provisions for it. Of
             | course the only way to enforce an international treaty, if
             | threats or sanctions are not enough, is war.
        
             | arlort wrote:
             | No
             | 
             | There is no codified legal process for a US state to leave
             | the Union, and the only previous attempt caused a civil war
             | 
             | A member of the EU has both an implicit right to withdraw
             | from the treaties (deriving from international customary
             | law around treaties) and an explicit legal path to follow.
             | A process which they control in their entirety (as in they
             | can't be forced to stay longer than they wish by the other
             | countries and can't be forced to leave earlier than the
             | prescribed deadline)
        
             | jfk13 wrote:
             | Some states tried that in the 1860s. It was traumatic.
        
         | drooopy wrote:
         | I hate to break it to you, but there is no such thing as a 100%
         | sovereign country anywhere in the world.
        
         | anony999 wrote:
         | Who is 100% sovereign? Any kind of treaty makes you less
         | "sovereign". I believe it's the same question about freedom.
         | Are you a free person if you have a job, pay mortgage or marry
         | someone?
        
           | MichaelCollins wrote:
           | > _Who is 100% sovereign?_
           | 
           | 100%? Only those with a nuclear deterrent, and maybe not even
           | them. Otherwise, there is always a bigger fish.
           | 
           | Edit: I can see some people don't believe me. Do you really
           | think treaties are more than paper if you don't have force to
           | back them up? The US has threatened to invade the Hague if
           | they try to charge Americans with war crimes. Went beyond
           | mere threats in fact, congress and Bush the younger enshrined
           | this threat in Federal Law.
        
             | theplumber wrote:
             | >> Do you really think treaties are more than paper if you
             | don't have force to back them up?
             | 
             | There is a foce that can build up. If the U.S starts going
             | rough someone else will take its place. We've already seen
             | pieces moving during Trump's term. U.S's soft power helps
             | it more than you think.
             | 
             | North Korea is more "sovereign" than the U.S. in your book.
             | Good economic and political relations with your neighbours
             | can make you more powerful than being a sovereign lunatic.
        
         | AdrianB1 wrote:
         | The member states are not 100% sovereign within the EU, there
         | are some mechanisms to control it. For example, Romania (EU
         | member country) has a provision that international treaties
         | signed by the country override local legislation, so that EU
         | directives - while not directly in effect - are above local
         | legislation.
         | 
         | Practically, if a national law is found to be not compliant
         | with the EU legislation, the country has some time to adjust it
         | to make it compliant or to repel it. In court cases, the
         | Constitutional Court can directly strike the provision in the
         | law or the entire law, as appropriate.
        
         | sofixa wrote:
         | > I had the impression member states were 100% sovereign within
         | the EU...
         | 
         | ~80-90% depending on how you measure.
         | 
         | The judiciary of all countries is technically under the ECJ
         | jurisdiction. People can sue their countries, and local court
         | decisions can be appealed to the European court structure
         | (ECJ/ECHR).
         | 
         | That was in fact one of the Brexit talking points, judiciary
         | independence.
        
           | ectopod wrote:
           | Just to be clear, the ECHR is not an EU court and brexit
           | Britain is still under its jurisdiction.
           | 
           | https://en.wikipedia.org/wiki/European_Convention_on_Human_R.
           | ..
        
             | M2Ys4U wrote:
             | And one cannot appeal a case from the court of a member
             | state to the CJEU. Member states' courts can (in some cases
             | must) refer specific questions of law, but that is not an
             | appeal by any party to the dispute.
        
         | dagw wrote:
         | ECJ can only rule on EU laws. So as such they are not
         | overturning any German laws, just stating the the German law is
         | not in compliance with EU regulations. What that means in
         | practice varies a lot from case to case, but in general the EU
         | has the power to fine members that are in breach of EU
         | regulations.
         | 
         | For practical reasons most EU countries want to be in
         | compliance with EU law and will often follow ECJ
         | recommendations and change their own laws if found to not be
         | compliant. Also many EU countries have laws that essentially
         | state that all their laws must comply with EU law.
         | 
         | The other option is to apply for an explicit opt out of certain
         | a EU regulation that you feel is incompatible with your own
         | laws.
        
           | tarakat wrote:
           | We've seen where this leads to in the US, where the federal
           | government financially extorts states to fall in line on
           | issues that are supposed to be up to the states, such as what
           | happened with speed limits:
           | 
           | https://en.wikipedia.org/wiki/Speed_limits_in_the_United_Sta.
           | ..
        
             | int_19h wrote:
             | The difference is that EU member states have the right to
             | leave if they don't think the arrangement benefits them.
        
               | tarakat wrote:
               | And we must ensure that choice remains economically
               | viable, and not just for the largest member states.
               | Because a union maintained by compulsion, even economic
               | compulsion, is not a union, but an empire.
        
           | JumpCrisscross wrote:
           | > _many EU countries have laws that essentially state that
           | all their laws must comply with EU law_
           | 
           | Isn't granting the ECJ jurisdiction is a requirement of EU
           | membership?
        
             | Longhanks wrote:
             | EU treaties are not a constitution and the constitution the
             | people gives itself stands above all.
        
               | JumpCrisscross wrote:
               | > _EU treaties are not a constitution and the
               | constitution the people gives itself stands above all_
               | 
               | Germany [1] and Hungary [2] played with this fire. In
               | summary, no.
               | 
               | Treaties have force of law. If a country improperly
               | ratified their EU treaties, they need to amend their
               | constitution (if it exists) or admit they never properly
               | joined the EU in the first place. Given the latter means
               | economic collapse for most EU members, it's not a hard
               | choice.
               | 
               | [1] https://www.jurist.org/commentary/2020/06/nick-kenny-
               | german-...
               | 
               | [2] https://www.reuters.com/world/first-eu-seen-moving-
               | cut-money...
        
               | Longhanks wrote:
               | Once the people choose to no longer follow the EU Supreme
               | Court, thus, as a follow up, no longer choose to follow
               | the EU treaties, they exit the EU just as the UK did.
               | 
               | No country is or can be forced to be a EU member.
               | 
               | Just because there are economic implications does not
               | mean the EU treaties are above the countries'
               | constitutions the people actually chose to enact.
        
               | SiempreViernes wrote:
               | This is true of any law, there isn't actually anything
               | except common agreement that constitutions should be
               | treated more seriously giving them extra status, and
               | there isn't anything but the consent of (enough) people
               | giving laws any power: nobody is ever forced to follow
               | any law, they are simply punished if they don't.
               | 
               | However, once you decide to stay within the law it is
               | indeed possible to have EU treaties stand above the
               | constitution. In situations where you've added bits in
               | your constitution that the EU treaty has priority, acting
               | like this isn't true is simply breaking the law.
        
               | Xylakant wrote:
               | But if your constitution is incompatible with the
               | treaties required to be member in the EU, you essentially
               | have two options: change your constitution or not be
               | member of the EU.
        
               | sokoloff wrote:
               | Or, leave both the constitution and treaties in place and
               | wait to see if the EU bothers to take adverse action.
        
               | NoboruWataya wrote:
               | It's a bit more complicated than this, because the
               | treaties don't really have any mechanism for unilaterally
               | expelling a member state and there is no precedent for
               | doing so. The reality is there is no easy answer to what
               | happens when a national constitution is incompatible with
               | EU law.
        
               | M2Ys4U wrote:
               | Member states can, in theory, be suspended, though we've
               | seen when it comes to Hungary and Poland that mechanism
               | is quite hard to use (as it requires unanimity of all of
               | the other member states) and it's considered the "nuclear
               | option".
        
               | einpoklum wrote:
               | And here I was thinking that German (and to some extent
               | French) politico-economic interests stand above all.
               | Silly me...
        
               | ben_w wrote:
               | Right now the political and economic interests of Germany
               | and France is a strong EU. Won't always be true, though I
               | can't foresee the circumstances when it might change.
               | 
               | Likewise, for most of my life, my personal political and
               | economic interests included a strong UK (still does even
               | though I moved to Germany) and USA even though I never
               | lived there.
        
         | NoboruWataya wrote:
         | The supremacy of EU law is a pretty interesting one. It is a
         | fundamental principle of the EU that EU law takes
         | primacy/supremacy over national law (in areas where the EU has
         | competence). How this actually works in practice can be a bit
         | fuzzy, because the EU is certainly not going to send tanks into
         | a member state's capital to enforce its laws.
         | 
         | As I understand it, the way this usually works is by national
         | law explicitly endorsing EU law (usually at the level of the
         | national constitution) and stating that in the event of any
         | contradiction between EU law and domestic law, EU law will
         | prevail. So EU law is "supreme" in practice, but that supremacy
         | is granted/recognised under the domestic constitutional order.
         | 
         | In some countries, this recognition is limited, such that
         | national courts will not permit EU law to override certain
         | aspects of the national constitutional order. When that
         | happens, there is really no easy solution.
         | 
         | An interesting recent example is
         | https://www.politico.eu/article/brussels-closes-case-against...
         | where the German court found that an ECB bond-buying programme
         | was unconstitutional and in doing so refused to follow a prior
         | decision of the ECJ.
         | 
         | Another consequence of this approach to supremacy is that
         | significant changes to the EU treaties require a constitutional
         | amendment in Ireland, which requires a referendum. To my
         | knowledge Ireland is the only country to have such a binding
         | legal requirement, with the effect that a number of amendments
         | to the treaties have in the past been delayed or defeated by
         | the Irish public voting against them.
        
         | T-A wrote:
         | > Is the ECJ kind of a Supreme Court that can overturn member
         | state laws and rulings?
         | 
         | Yes. See e.g.
         | 
         | https://www.citizensinformation.ie/en/government_in_ireland/...
        
         | tokai wrote:
         | The sovereign members of the EU have ratified treaties of
         | European Union law themself.
        
           | Longhanks wrote:
           | * some of the then-elected governments
           | 
           | There was a national referendum before the Lisbon treaties
           | that was declined by the Netherlands and France, which in
           | turn "watered down" the EU constitution into the Lisbon
           | treaties which are now in use, which were then ratified
           | without any national votes.
           | 
           | As the German politician Martin Scholz once said, if the EU
           | were to apply for an EU membership, it would get declined
           | because of a lack of a democratic foundation.
        
             | jltsiren wrote:
             | > As the German politician Martin Scholz once said, if the
             | EU were to apply for an EU membership, it would get
             | declined because of a lack of a democratic foundation.
             | 
             | That's the way it should be.
             | 
             | In a democratic state, the state itself is sovereign, while
             | the citizens are not. The rights of the citizens depend on
             | the constitution, which can be changed according to a
             | democratic process. The EU is a union of sovereign states.
             | Due to that sovereignty, decision-making in the EU cannot
             | be fully democratic, as that would violate the sovereign
             | rights of the member states.
        
               | Longhanks wrote:
               | Well, since I live in Switzerland, I am happy to
               | disagree. Swiss people vote on many things multiple times
               | per year and consider this a fundamental right and _this_
               | the way it should be.
        
               | jltsiren wrote:
               | A sufficient majority of citizens can change the
               | constitution and take that right away from you. Because
               | you live in a democratic state, you do not have sovereign
               | rights.
        
               | MichaelCollins wrote:
               | Just the same; sufficient number of states can take those
               | 'sovereign rights' away from a country. In the context of
               | a discussion about Germany, shouldn't this be obvious?
        
               | jltsiren wrote:
               | There are many levels of government from local to
               | multinational. At most one of those levels can be
               | sovereign, and democracy makes most sense on that level.
               | On other levels, some degree of democracy is possible,
               | but it's always subject to the consent of the sovereign
               | state.
               | 
               | EU member states have voluntarily agreed that in some
               | situations, EU law takes priority over national law. But
               | because the member states are sovereign, it's up to them
               | to decide how to proceed when EU and national laws are in
               | conflict. The EU has only limited means to sanction
               | member states that breach their laws. It cannot arrest
               | and prosecute German lawmakers. It can't declare German
               | laws invalid, except to the extent German institutions
               | voluntarily follow EU rulings. It can't forcibly rewrite
               | German laws. And in extreme situations, it can't declare
               | Germany's Constitution unconstitutional and invalid, and
               | it can't forcibly rewrite it.
        
               | sveme wrote:
               | The difference is between direct and representative
               | democracy, not of democracy itself.
        
         | xyzzyz wrote:
         | A good mental model is that EU works pretty much like US did
         | 100 years ago. The US states were roughly as sovereign as EU
         | states (with some important differences, especially in defense
         | and immigration), and US federal government was similarly
         | powerful to EU government.
         | 
         | This has, of course, changed over the last century, and US
         | states lost most of their sovereignty. I predict the same will
         | happen to EU states over the next century.
        
           | clarionbell wrote:
           | That would be in 1920s and states were far from sovereign
           | back then. Maybe 1820s, then one could argue the union was
           | more 'loose'. But even then, the union was pretty tight.
           | Hence constant issue of slavery in federal law.
        
       | Tangurena2 wrote:
       | Archive link: https://archive.ph/oKMPL
        
       | zackees wrote:
        
       | omgomgomgomg wrote:
       | Yet another time Germany needs external intervention measures to
       | get in line.
       | 
       | Time and time again, history has proven everywhere that if the
       | population does not keep their politicians in line, they will get
       | drunk from all the power.The people do not even vote reasonably,
       | so it is very difficult.
       | 
       | Have these lawmakers ever presented good results which can be
       | attributed to their work?
        
         | Sebb767 wrote:
         | > The people do not even vote reasonably, so it is very
         | difficult.
         | 
         | You get three votes [0] every four to five years, where you
         | need to vouch for someone from a short list to make all the
         | choices to represent you. And this is actually the good case,
         | in the US it's reduced to just two options. Deciding whether
         | someone votes reasonably is very hard when they weigh certain
         | decisions (and how likely politicians are to keep their
         | promises) completely different.
         | 
         | Just as an example, you might say that you think climate change
         | is the most important topic overall right now, so you vote for
         | the German Green party - except, of course, if you doubt that
         | they'll actually change much or if you think that nuclear power
         | is the answer, which they don't like. So you think of voting
         | for a small party, but they'll be in the opposition at best,
         | but most likely not even hit 5%, making your vote nothing more
         | than a gesture completely ignored by the ruling parties. So
         | what's the unreasonable choice here?
         | 
         | Long story short, what I'm trying to say is that whenever I
         | heard the accusation of people voting unreasonably, so far, the
         | actual argument always was "people disagree with my [clearly
         | optimal] opinion or voting strategy".
         | 
         | [0] Local, federal and state each.
        
       | numlock86 wrote:
       | Is this from the same guys who want to get rid of cryptography
       | for the public or at least get some backdoors?
        
         | gpderetta wrote:
         | The ECJ never 'wanted to get rid of cryptography' nor has the
         | power to do so. It has the power to declare that such a law
         | would violate EU treaties though.
        
       | nonethewiser wrote:
       | Is Germany a sovereign country if an international court presides
       | over them?
       | 
       | This tends to get brushed aside by people defending the EU. Isn't
       | this a step in the direction of the EU becoming something like
       | the United States? There tends to be a lot of double-speak on
       | this: "That's not true" and "it's a good thing" at the same time.
        
         | layer8 wrote:
         | Germany is free to leave the EU if they don't want to follow
         | the accords anymore. Its being subject to EU law is voluntary.
        
         | karatinversion wrote:
         | It is not. The whole point of the EU is to pool sovereignty for
         | common benefit. Germany is constrained in things it can do: it
         | cannot ban the importing of French wine, give huge subsidies to
         | its domestic steel industry to gain market share in Europe, or
         | stop Bulgarians entering the country.
         | 
         | Of course, there is no EU army enforcing EU law, so a
         | sufficiently damn-the-consequences German government could do
         | these things, at the cost of destroying the single market.
        
           | radicaldreamer wrote:
           | The EU's stick is financial
        
         | gpderetta wrote:
         | Any country that signs any form of international agreement is
         | giving away part of its sovereignty in exchange of some
         | benefit. It is just a matter of degrees.
        
       | dane-pgp wrote:
       | I'd be interested to know if the EU law that the ECJ relied on
       | differs from or goes further than the case law from the European
       | Court of Human Rights that the UK is still a member of.
       | 
       | A ruling against mass data retention in the UK could help Privacy
       | International in their on-going case against the government for
       | its mass surveillance and use of "bulk personal datasets".
       | 
       | https://www.privacyinternational.org/long-read/4598/briefing...
        
         | gpderetta wrote:
         | Mass data retention and surveillance has been ruled illegal
         | multiple times both by ECJ and ECHR (as it is in direct
         | contravention with the right to privacy in article 8). In
         | particular UK is still supposedly bound by the ECHR even after
         | Brexit. Unsurprisingly, EU governments and UK in particular, do
         | not care, and there is only so much these courts can do to
         | enforce their judgments.
        
         | tgsovlerkhgsel wrote:
         | Doesn't sound great:
         | 
         | "allows, for the purposes of safeguarding national security, an
         | instruction to be given requiring providers of electronic
         | communications services to retain, generally and
         | indiscriminately, traffic and location data in situations where
         | the Member State concerned is confronted with a serious threat
         | to national security that is shown to be genuine and present or
         | foreseeable. Such an instruction must be subject to effective
         | review, either by a court or by an independent administrative
         | body, and can be given only for a period that is limited in
         | time to what is strictly necessary, but which may be extended
         | if that threat persists"
         | 
         | -- that is just asking for a "perma-emergency" to justify such
         | an exception for a long time until the court can (years later)
         | maybe decide that that goes go far.
        
           | dane-pgp wrote:
           | > just asking for a "perma-emergency" to justify such an
           | exception for a long time
           | 
           | For context, I thought I'd look up the current UK "National
           | Threat Level", and it is apparently "Substantial", which is
           | the middle value on a 5 point scale, and the lowest it has
           | ever been since the system was introduced in 2006.
           | 
           | https://en.wikipedia.org/wiki/UK_Threat_Levels
        
       | BlueTemplar wrote:
       | In related news, the EUropean Data Protection supervisory
       | authorities are complaining that their budget isn't being
       | significantly increased even as the complaints they have to
       | process have exploded in the recent years :
       | 
       | https://euobserver.com/tickers/156038
        
       | int_19h wrote:
       | There's a curious comment on that article from a person in
       | support of that retention law:
       | 
       | "Google can do that [blanket data collection], my Chinese mobile
       | phone manufacturer too, why shouldn't the government be able to
       | do it?"
       | 
       | Something to ponder when we talk about data collection by private
       | parties: like it or not, it does provide justification for
       | governments doing the same.
        
         | superjan wrote:
         | It works the other way too: If a politician objects to FAANG
         | privacy violations, they should not introduce laws that allow
         | such violations themselves.
        
           | Sebb767 wrote:
           | Of course they can. It makes sense for the government to be
           | able to arrest people, but I absolutely don't want to give
           | corporations that right (especially not FAANG - judicial
           | systems a bad enough as is, but Google's customer support is
           | still a downgrade).
           | 
           | The government and the private sector are very different and
           | what one of them can and can't do is not necessarily related
           | to whether the other should or shouldn't be able to.
        
         | novok wrote:
         | Google and others are also not allowed to do blanket data
         | collection by law, they are restricted in how and who's data
         | they can collect with stuff like the GDPR.
         | 
         | You can debate how effective it is, but they are not allowed to
         | do it, and nobody should be allowed to either.
        
         | uhuruity wrote:
         | Governments have a monopoly on (legal) violence, and by default
         | it's not possible to move countries (that is, unless you get a
         | visa or live in a free movement area). I think it's reasonable
         | to hold governments to a qualitatively higher standard than
         | companies.
        
         | eivarv wrote:
         | No, it does not - for two reasons:                 - Two wrongs
         | don't make a right: Someone behaving unethical does not excuse
         | unethical behavior from someone else.       - There is a
         | difference in the power dynamics of the relationships: Consumer
         | and service provider VS citizen and state.
         | 
         | If anything, laws and right should be strengthened to
         | explicitly ban this behavior.
        
           | int_19h wrote:
           | You may disagree with that justification, sure. The point is
           | that there are people who are convinced by it.
        
             | eivarv wrote:
             | Whether people are convinced or not - your claim was that
             | it provided "justification".
             | 
             | My point is that it does no such thing - it doesn't hold up
             | as a valid argument (which really is the bare minimum for
             | something to even be considered as potentially true).
        
         | ghiculescu wrote:
         | You can opt out of using Google or buying Chinese phones more
         | easily than you can opt out of being German. Governments have
         | more unchecked power and should be held to a higher standard
         | accordingly.
        
           | immibis wrote:
           | In the EU, you can very easily opt out of living in Germany.
        
             | moonchrome wrote:
             | That's like saying you can solve a pest infestation problem
             | in your house by blowing it up.
        
         | caskstrength wrote:
         | Because neither Google nor your Chinese mobile phone
         | manufacturer can put you in jail.
        
       | sva_ wrote:
       | I posted this earlier:
       | 
       | https://news.ycombinator.com/item?id=32909698
       | 
       | I don't care about the points, just think it is a bit weird that
       | a promotional commercial company post is now on the frontpage
       | instead of a more neutral news site.
       | 
       | Although now, Reuters would probably be the better source than
       | what was available earlier today:
       | 
       | https://www.reuters.com/technology/indiscriminate-data-reten...
        
         | [deleted]
        
         | dang wrote:
         | Good point. We've changed the URL to the Reuters article now.
         | Submitted URL was https://mailbox.org/en/post/european-court-
         | of-justice-overtu.... Thanks!
        
       | shadowgovt wrote:
       | Interesting that it was a German law. I was under the impression
       | that German law was pretty conservative on data collection.
        
         | bakuninsbart wrote:
         | In general, yes, and I think Germans are (at least in theory)
         | much more protective of their data than others. Nonetheless,
         | every government since the late 00s has been trying to push
         | this through in one form or another.
         | 
         | I suspect there is heavy lobbying from within the professional
         | bureaucracy (including police and IC) for this. Possibly also
         | diplomatic pressure from countries like the US.
        
           | moffkalast wrote:
           | Gestapo always trying to sneak its way back in silently in
           | the background. And it's not just Germany either, it's quite
           | annoying how backsliding into an anti-democratic surveillance
           | state is now the default and needs to be constantly fought.
           | 
           | Perhaps it's "always has been", it's just laughably easy to
           | do with software these days.
        
           | narag wrote:
           | Don't forget the companies that provide the means to
           | eavesdrop everybody.
        
       | therealmarv wrote:
       | hold on, what Germany wanted to do (blanket data retention) is a
       | reality for a long time in other states in EU. There are many
       | countries collecting for 6+ months all connection data (e.g.
       | France or Spain). A map is in this German article from 2019
       | 
       | https://netzpolitik.org/2019/vorratsdatenspeicherung-in-euro...
       | 
       | So this becomes illegal in other EU member states now too? Does
       | anybody have any inside how this will change EU data retention in
       | general?
        
         | eivarv wrote:
         | It has been illegal _at least_ since the Grand Chamber
         | judgments on the cases of  "Big Brother Watch" and "Centrum for
         | Rattvisa" last year [0]. Though, really, the outcome was fairly
         | predictable for anyone following the field.
         | 
         | TLDR; Continuous "General and indiscriminate retention" is not
         | compatible with EU fundamental rights.
         | 
         | [0]: https://europeanlawblog.eu/2021/06/08/big-brother-watch-
         | and-...
        
         | unity1001 wrote:
         | I believe you have to retain tax-related data (customer
         | invoices, bills, payments etc) for ~2 years or however long
         | your local jurisdisction requires. I don't think that will go
         | away since such laws mirror the long-standing laws used in
         | normal accounting. This should be related to non-ecommerce
         | related data.
        
       | BlueTemplar wrote:
       | And laws about the data collection, collation, and usage by
       | governments date quite a way back...
       | 
       | For instance, the 1974 French SAFARI scandal,
       | 
       | where the government wanted to build a centralized computer
       | database that would collect country-wide administrative data,
       | starting with the 400 (physical) police files, and IIRC with a
       | single social security number for each citizen,
       | 
       | has caused such an uproar that the project was abandoned and the
       | data privacy regulator CNIL was soon created.
       | 
       | (Note the totalitarianism (aka "high modernism") inherent in
       | computers, by the way what they show tends to be accepted as
       | truth, the way they don't have any common sense, the way their
       | digital nature tends to classify people into strict categories,
       | which then become set in stone by their limited capacity to
       | forget, the way the free flow of information turns qualitative
       | and how they give a lot of power to the State while democracies
       | try to limit this power.)
       | 
       | Sadly, we've recently seen its failure - caused in a big way by
       | it being stripped of its power in 2004, leaving only a
       | consultative (non-)power - in 2010 a law about "a general
       | principle of information sharing between administrations" has
       | still been created.
       | 
       | Some notable worries are about the preceding 2007 law that
       | authorized ethnic statistics - while personal data treatment
       | using ethnic or racial data, and adding race and religion values
       | in the administrative files are still forbidden - the potential
       | of ethnic data becoming racial data is still very high.
       | 
       | Another worry is about the genetic prints file : created in 2002
       | and first limited to sexual criminals, it has since been extended
       | to a whopping 5% of the population, 87% of which have NOT (yet,
       | quite a lot of the debate being how long these files should be
       | kept) been condemned for the reason they got added to the file.
       | It gets worse, and shows how quantitative can become qualitative
       | : because genetic information is NOT independent between family
       | members, a staggering third of the population ends up having its
       | genetic identifiers at least partially stored in these files.
       | 
       | A 2022 project (submission date ending 2 weeks ago) to
       | interconnect the digital prints file with the criminal records
       | file has mentioned a potential future project of connecting both
       | with the generic prints file... (among others) with also a
       | policemen-suggested requirement that "the solution be compatible
       | with remote work [...] not requiring strong authentication".
        
       | Semaphor wrote:
       | Our data retention laws get overturned all the time. Usually
       | already by our constitutional courts. Sadly our politicians don't
       | care much and don't get punished, so they just try it again and
       | again and again and usually it's in effect for a while before the
       | courts give judgement.
       | 
       | I really can't explain where Politikverdrossenheit (political
       | apathy) comes from.
       | 
       | edit: The last sentence is sarcasm
        
         | pgorczak wrote:
         | The process makes sense from a separation of powers
         | perspective. When there's an especially fine line between what
         | legislative wants and (constitutional) judicative allows, there
         | has to be some rejections.
         | 
         | This is probably one of the cases where lawmakers feel some
         | spite about constitutional courts exerting too much influence
         | over their work. It would be easier if they'd just talk about
         | it before going through the whole process but I guess creating
         | frustration is part of the point here.
        
           | goodrubyist wrote:
           | That's not how it works at least in the US, but I don't know
           | about Germany. SCOTUS claims that the judicial system is not
           | for reviewing all the acts passed for constitutionality, but
           | (as per Article III) only addressing specific harms brought
           | up by individuals (the requirement for standing). This is
           | from a 1992 precedent:
           | 
           | 1. The plaintiff must have suffered an "injury in fact,"
           | meaning that the injury is of a legally protected interest
           | which is (a) concrete and particularized and (b) actual or
           | imminent 2. There must be a causal connection between the
           | injury and the conduct brought before the court 3. It must be
           | likely, rather than speculative, that a favorable decision by
           | the court will redress the injury
           | 
           | Talking in advance about what law is constitutional would be
           | perverse under such system (I love the standing doctrine, btw
           | and so does the Chief Justice).
        
             | pgorczak wrote:
             | AFAICT it really is different in Germany. The
             | constitutional court can also be called by other courts, by
             | the government or by parliament to check already passed
             | laws.
        
         | ajsnigrutin wrote:
         | > I really can't explain where Politikverdrossenheit (political
         | apathy) comes from.
         | 
         | I understand... it's simple... someone does something bad,
         | nothing happens to them... bad thing again... nothing
         | happens... people protest... nothing happens... bad thing
         | again.. nothing happens...
         | 
         | If this was some other timeline, and people brought guillotines
         | out every couple of years and "dealt with" the "bad"
         | politicians in "the french way", politicians themselves would
         | be calling for jail sentances, because they'd atleast be alive
         | in there.
         | 
         | Otherwise, i live in a different country, and the political
         | situation is the same.
        
           | petre wrote:
           | This only happens in France but without guillotines: strikes
           | + yellow gillet protests. The Germans are too well behaved to
           | do anything or the political process is much too civilised to
           | employ any form of civil disobedience.
        
             | Tarsul wrote:
             | I think it also has something to do with that our (German)
             | media is not as radicalised. And Germans don't like
             | facebook, so there's probably less options/danger also to
             | radicalise through social media. And usually the poor are
             | not as poor as in other countries. But we will see what
             | happens this winter.
        
         | tut-urut-utut wrote:
         | Don't worry. Today's newspapers reports that our fine
         | ministerin is already looking to find and exploit loopholes in
         | the judgement and will try to implement as much as possible
         | [1].
         | 
         | It's a shame. We tend to criticize EU for a million valid
         | reasons, but once in a while when they do something right, our
         | government first reflex is to just ignore it.
         | 
         | [1] (German)
         | https://www.zeit.de/politik/deutschland/2022-09/vorratsdaten...
        
           | nani8ot wrote:
           | The coalition she's part of already said that they are
           | against indiscriminate data retention, so I'd say the chances
           | of her getting her will are slim.
           | 
           | Though if the next cabinet in a few years includes the CDU
           | (christian democrats), they'll try again.
        
         | geewee wrote:
         | Seems like we've had basically the exact same case in Denmark.
         | A law gets overturned by the ECJ and they just make another law
         | that's slightly different. Then they say there's a certain
         | "process risk" regarding the law which basically means it might
         | not be compatible with EU law at all. Pisses me off.
        
         | themitigating wrote:
         | Political apathy comes from the political party that would most
         | benefit from low turnout.
         | 
         | If you are disappointed with politics that is a reason to vote.
         | If you don't care, that's a valid reason not to vote
        
           | Semaphor wrote:
           | Been preaching that for years, but I can certainly see where
           | "it doesn't matter anyway" comes from.
        
             | em-bee wrote:
             | but it doesn't matter. all parties pander to a majority to
             | get votes. minority interests are ignored everywhere, and
             | consequently none of the available parties have any
             | redeeming qualities that make them a better choice than the
             | others.
             | 
             | the whole system is broken. the parties waste most of their
             | energy to fight each other instead of cooperating to
             | actually solve problems. i want to throw out the whole lot
             | and replace it with a system that is actually
             | representative of the communities. is there any party
             | anywhere that can achieve that?
        
               | earth-adventure wrote:
               | At this point in time, on this planet - not as far as I
               | know. It's against human nature. It's why I love Star
               | Trek TNG, as cheeky as it can be at times, it's always
               | reasoning about human behavior and defining its
               | shortcomings. And trying to overcome those.
               | 
               | Maybe the Swiss with their voting on all issues system,
               | are a step in the right direction.
        
           | whimsicalism wrote:
           | Is there not a limit case?
           | 
           | Would you tell people in China, "if you are disappointed with
           | politics, vote in your People's Congress elections?"
        
             | kevin_thibedeau wrote:
             | CCP members theoretically have more agency than just
             | voting. Every one of them can advance issues at the peoples
             | congress.
        
             | themitigating wrote:
             | Assuming there's a choice, I'm not familiar with Chinese
             | elections, then yes.
             | 
             | Why not vote? What is the advantage of that?
        
               | djbebs wrote:
               | Voting provides legitimacy to the winner of the election
               | and to the election process itself.
               | 
               | If you disagree with both of those things, voting has no
               | positive and results only in negatives.
        
               | themitigating wrote:
               | If it has no positives what are the negatives?
        
               | function_seven wrote:
               | Providing legitimacy to parties or institutions that you
               | reject.
               | 
               | Simpsons did it: "Don't blame me, I voted for Kodos"
        
               | RegnisGnaw wrote:
               | Of course there is a choice. You get "Person A" from the
               | CCP or "Person B" from the CCP.
               | 
               | I mean even in the DPRK, you can vote for whoever you
               | want. Its what happens afterwards..
        
               | themitigating wrote:
               | So you are claiming in the DPRK voting is rigged? Do you
               | have proof of this?
        
               | bonzini wrote:
               | In DPRK there is only one choice on the ballot that you
               | can optionally cross out to disapprove. That doesn't
               | happen often or at all; I suppose they'd know who does it
               | based on the time it takes to vote.
        
               | whimsicalism wrote:
               | People might view it as giving legitimacy to a process.
        
               | themitigating wrote:
               | The process of voting is legitimate.
               | 
               | Does giving legitimacy to voting accomplish anytime? What
               | about protesting the system by not voting, does that do
               | anything?
        
               | djbebs wrote:
               | Totally disagree.
        
               | themitigating wrote:
               | Why?
        
               | VLM wrote:
               | The way they've done it for decades where I live, is
               | party A and party B serve the same master on all
               | substantial issues, so pick a "hot button" social issue
               | that neither side will ever do anything about and have A
               | and B take opposing views. Then do some gatekeeping where
               | both parties and the media agree to push hard propaganda
               | that voting 3rd party is "throwing your vote away".
               | 
               | The people in charge are the ones who pick the two almost
               | identical candidates. There will be no change in economic
               | or foreign policy regardless of winner.
               | 
               | (Edited, the other way is to push hard core identity
               | politics where demographic groups are owned by certain
               | parties, so voting has all the legitimacy of a mere
               | census. The only way to influence policy would be having
               | (or not having) children)
        
               | whimsicalism wrote:
               | > The process of voting is legitimate.
               | 
               | What do you mean by this? If I (a dictator) were to hold
               | an election but require 90% approval to unseat me, that
               | would be a "legitimate" process because it includes
               | voting?
               | 
               | Do you not understand what I am saying?
               | 
               | > What about protesting the system by not voting, does
               | that do anything?
               | 
               | Arguably yes. Afghanistan's state legitimacy collapsed as
               | basically fewer than 10% of people voted in any of it's
               | elections and then the government fell.
        
               | themitigating wrote:
               | What event in Afghanistan are you referring to and can
               | you prove it was because of a lack of legitimacy due to
               | lack of voter participation?
        
               | whimsicalism wrote:
               | The fall of the government in Kabul. I'm not saying this
               | is the single causal event, but lower than 10% voting
               | definitely contributed to a lack of legitimacy of the
               | central govt leading to its fall.
        
           | MichaelCollins wrote:
           | > _Political apathy comes from the political party that would
           | most benefit from low turnout._
           | 
           | This is very reductive, you've lost sight of the trees and
           | only see the forest. Politically apathetic people have a wide
           | array of personal reasons for being the way they are. You
           | don't know what's going on in all of their lives, you can't
           | reduce all of their life experiences and feelings into one
           | big conspiracy.
        
         | hok wrote:
         | The fact that a court overturns a law is proof that our
         | democracy actually works.
         | 
         | No need to be 'verdrossen'.
         | 
         | It would be worse if the courts just approves all laws the
         | government conceives.
        
           | Semaphor wrote:
           | The issue is, that the process to overturn a law takes years,
           | but introducing the same law (with a slightly different
           | paint) again takes months.
           | 
           | Or for some reductio ad absurdum: Slavery is legal for 10
           | months per year, but every October the Slavery Legalization
           | law gets struck down by the courts, proof that our democracy
           | works.
        
             | kccqzy wrote:
             | Why does it take so long though? In the United States
             | courts often issue a preliminary injunction or temporary
             | restraining order to stop the enforcement of law. This way
             | the courts can take their time in deciding a case while the
             | new law does not get enforced.
        
           | [deleted]
        
           | croes wrote:
           | Some bad laws aren't overturned
        
         | retcore wrote:
         | From 51:25 in this BBC documentary [0] you're introduced to
         | Horst Herold [1] the President of the BKA (Federal police) who
         | instigated the creation of the Suchsystem Inpol sowie Analysen
         | [2] to catch the Baader Meinhoff gang by trawling citizens
         | data. Until the violence of the Baader Meinhoff gang, there was
         | sufficient popular sentiment including in politics, against any
         | Federal use of power as prohibited by the constitution. This
         | was effectively reversed with the assassination of Alfred
         | Herrhausen [3] using a enfilade of shaped charges to slice
         | through his armoured limousine. Herold created the first
         | European data dragnet to identify anyone who profiled similarly
         | to his quarry. The gang were apprehended only using indirect
         | evidence ,[edit: of their whereabouts]. Violence and the
         | ensuing police reactions disheartened and suppressed opposition
         | to Federal government enforcement.
         | 
         | [0] https://www.bbc.co.uk/iplayer/episode/p093wy1r/cant-get-
         | you-... ,
         | 
         | [1] https://en.m.wikipedia.org/wiki/Horst_Herold ,
         | 
         | [2] https://de.m.wikipedia.org/wiki/INPOL ,
         | 
         | [3] https://en.m.wikipedia.org/wiki/Alfred_Herrhausen
        
           | croes wrote:
           | Don't forget the part Peter Urbach played as agent
           | provocateur in the Red Army Faction.
           | 
           | https://en.m.wikipedia.org/wiki/Peter_Urbach
           | 
           | Or later the Celle Hole
           | 
           | https://en.m.wikipedia.org/wiki/Celle_Hole
        
         | amelius wrote:
         | > I really can't explain where Politikverdrossenheit (political
         | apathy) comes from.
         | 
         | It comes from voter indifference.
        
           | philipov wrote:
           | This is a tautology and doesn't answer the question.
        
         | Etheryte wrote:
         | Out of curiosity, doesn't Germany have the equivalent of a
         | constitutional watchdog? For example in Estonia, the president
         | fills this role (as do some other constitutions, but the
         | president is a good example in this context). The president is
         | otherwise a purely ceremonial figurehead in Estonia, but one
         | functional role they fill is that before any new bill becomes
         | law, they have to sign off on it and declare it's
         | constitutional. If they find it not to be, they can send it
         | back to the parliament (or to the highest national court,
         | depending on the circumstances).
        
           | joker99 wrote:
           | We do, pretty much the same as your situation. However, it
           | doesn't happen very often that the Bundesprasident actually
           | does this. Their role is almost purely ceremonial and I could
           | count the cases on one hand where they used this power. Some
           | legal professionals argue, that this check is basically a
           | ceremonial one as well.
        
             | tomrod wrote:
             | If one thing I've learned the past decade, it is that
             | "ceremonial" functions can be disrupted by people who don't
             | respect the precedent.
        
             | nielsole wrote:
             | https://www.sueddeutsche.de/politik/hintergrund-
             | bundespraesi...
             | 
             | A list of seven rejected laws. I think there was one more
             | in the last decade.
        
         | pelasaco wrote:
         | Me as german citizen would be interested to know how much such
         | processes costs from our taxes money. From bringing such law
         | again to debate, convicting the parlament to vote it, then
         | approving it, then the whole courts costs... I'm not sure why
         | at least once a year we see that there.. regardless of who is
         | in the government.. Is it Lobby driven?
        
         | salawat wrote:
         | It comes from fundamental constraints on signal propagation,
         | socially reinforced bias towards abstaining or following anyone
         | who sounds like they have expertise, confict aversion, the huge
         | overhead involved with actually becoming known enough by people
         | to get past change aversion, and a general willingness to
         | accept that the emperor is far away even though in today's
         | world they aren't.
         | 
         | We're literally living in a time where "global" namespace
         | changes are made willy nilly by people who don't even spend the
         | time reading everything they may have an effect on by doing
         | them, which is just accepted as being "impossible".
         | 
         | Further, the only people with the time/resources to engage in
         | politics in a tangible way are pgobably the most disconnected
         | people from the way of life for the polises they are shaping.
         | 
         | Human beings are ruthless energy optimizers (biological
         | constraint), and the cognitive load of actually productive
         | political engagement is absurdly high. Thus, people with
         | literally anything else to do avoid it, or find it pointless,
         | leaving only those so bereft of anything else to do to be the
         | most impactful on that arena. Which in turn creates more for
         | the disengaged to have to do to keep them from getting in the
         | way...
         | 
         | It's a vicious cycle.
        
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