Can the police use mobile phone location data?

“The generalized and undifferentiated retention of data relating to electronic communications is only permitted in the event of a serious threat to national security.” This opinion, expressed by one of the Advocates General of the Court of Justice of the European Union, could have far-reaching consequences for criminal investigations in the future.

Attorney General Manuel Campos Sánchez-Bordona has ruled this way following the appeal of Graham Dwyer, who in 2015 was sentenced to life imprisonment for the murder of child caregiver Elaine O “Hara. The data collected from his cell phones were key to the police investigation and guilty verdict.

The case reached the European Court of Justice following an appeal from Dwyer, who argued that Ireland’s data retention law is contrary to European Union law. .

Campos Sánchez-Bordona, one of the 11 attorneys general who advise the Court, argues that the retention “of traffic and location data” is appropriate in cases that threaten national security such as terrorism, but that it should not be applied “to murder cases “.

The opinion, which is not a final ruling, is usually followed by the judges of the Court of Justice of the European Union. “This opinion is likely to be confirmed by the Court because it is clearly based on previous jurisprudence,” Gianclaudio Malgieri, associate professor of Law and Technology at the EDHEC Business School in Lille (France), explained to Euronews. “It is based on two recent rulings of the Court itself.”

If the Court ultimately follows the directions of the Advocate General, the ruling could determine how the police collect evidence, limiting their ability to use traffic and location data from mobile phones in criminal investigations.

Irish authorities argue that Dwyer’s conviction would not have been possible if his mobile data had not been used. But his legal team alleges that the police used the phone as a “personal tracking device”, undermining his civil liberties.

Campos Sánchez-Bordona also points out in his opinion that, in Ireland, the decision to access mobile phone data is taken “at the discretion of a police officer of a certain rank”, without being “subject to prior review by a court. or an independent authority “, as established by European jurisprudence.

Ireland’s Attorney General Paul Gallagher has warned that serious criminals “will be out of reach if access to such data is significantly reduced.” And in Dwyer’s case, it also increases the chances that his sentence will be reviewed.

The messages on his mobile phone revealed his plans to satisfy his desire to rape and kill. He demanded that Elaine O’Hara help him attack another woman or offer herself as his victim.

A final sentence is expected in March next year.