3 September 2021

The unlawful law: Mass surveillance of the Danish people


Since 2006 Denmark has, as part of our fight against terrorism, saved many thousand billion pieces of data about the Danes' communication. But nobody knows if this has any effect, and the European Court of Justice has repeatedly established that it is illegal. So why are we still doing it?

A text message to your sweetheart. A call to Aunt Erna.

Every time you use your mobile phone, a piece of data is stored about where, when, how and with whom you communicate. This becomes many millions of registrations of the Danish population every single day.

This mass surveillance is due to the so-called 'Data Retention Order', which is based on a legal provision that stems from the early terror packages.

But nobody really knows whether the innumerable data logs have helped to prevent or solve terror. On the other hand, we know that data collection goes beyond the limits set for states' surveillance of their populations in Europe. The European Court of Justice established this already in 2014 and subsequently in a number of similar judgments.

-The court says that you are not allowed to log everyone as we do in Denmark, because it is contrary to our fundamental rights to, among other things, having a private life in relation to the state. In everyday speech, you might say that the data retention directive is illegal, explains associate professor in data protection law Hanne Marie Motzfeldt.

-And then you have to ask how a law can be illegal? This can be because, since we, as a population, chose to transfer the legislative power to the elected representatives and the governments, we chose at the same time to reserve certain rights for ourselves. We said, ‘he states can go to here and no further'. We set certain limits, among other things, to ensure a well-functioning democracy. And here you’ve hit one of these limits, says Hanne Marie Motzfeldt.

Expensive to live up to the law

Despite the judgments of the European Court of Justice, in Denmark we still continue to log all Danes across the board. 

-There are many conspiracy theories about why we in Denmark have not already changed our data collection scheme, so it comes within the framework of what you can expose your population to. And it's clear that people are surprised that we have a Ministry of Justice that has not respected the limits of power for many years, says Hanne Marie Motzfeldt. 

She points out that there may well be a quite practical reason why we continue the extensive monitoring. 

-It is presumably expensive. At one time the price of the adjustments required was estimated to be around DKK one milliard. It is my personal theory of why it has not yet been changed. 

-At the moment, the Ministry of Justice is working on a draft of how you might want to design new rules to ensure that they are in line with the limits that we as the population have set. I hope that the Danish surveillance will be lawfully achieved before the 21st anniversary of 9/11, says Hanne Marie Motzfeldt.