According the online newspaper Repubblica.it, the Italian Data Protection Authority (DPA) stated verbatim that the 72 ? months retention periodo imposed by the upcoming legislation is much too long.
By doing this, the DPA implied that the only problem with data-retention is its duration, and didn’t mention the main issue raised by the EUCJ decision: carpet data-retention is not possible under the EU legislation.
What is worse, is that DPA did so without any hint of the “stress-test” required to ascertain whether the national legislation is still eurocompatible or not.
The lack of the stress test is going to be a relevant issue for a lot of subjects, including prosecutors, ISPs and the very DPA itself, because of a legal “short-circuit” that can be summarized as follows:
- A citizen starts a Schrems-like case, asking an ISP for his personal traffic data to be deleted.
- If the ISP complies affirming that the data-retention legislation is not valid, it will be probably be charged of obstruction of justice (at least, according the Legislative Decree 231/01 – criminal corporate liability).
- If the ISP refuses, upholding the data-retention legislation, the citizen will file a complaint with the DPA.
- Two possibilities now:
- the DPA acknowledge the citizen’s right and order the data to be deleted: goto Line 2.
- the DPA denies the citizen’s request and order the ISP to keep maintaining the traffic-data. Thus the DPA counterdicts the EU Court of Justice decision.
Things are getting worse in criminal court:
- The prosecutor offers data-retention obtained traffic-data.
- The defense challenges this evidence on the basis of the EUCJ decision.
- The court either:
- sustains the defense challenge, thus declaring null and void the acquisition of the traffic-data, and possibly ask the prosecutor to investigate the ISP that retained illegally the data,
- reject the defense request, opening the way to the involvement of the EUCJ on the matter, causing an unforeseeable duration of the process, likely to reach the Statute of Limitation term.