Mass Surveillance of Financial Data

Monitoring and Data Retention

Data retention characteristically involves storing mass data of persons not suspected of criminal or otherwise dan­ger­ous behaviour, and making this data accessible to security authorities. In 2014, the European Court of Justice (ECJ) held that a telecommunications data directive violated European fundamental rights and declared it invalid. The ECJ clarified that mass data retention without cause is valid only when used for prosecuting serious crime or in cases of grave potential danger.
Another recent data retention development involves financial reporting obligations relating to money laundering and financing terrorism. Banks are legally required to monitor customer transactions and store relevant data for a minimum of 5 years. Suspicious activity must be reported to the Financial Intelligence Unit, which may be for­warded to security intelligence agencies (SIAs) in appropriate cases. Besides fundamental rights problems with transactional screening generally, arguably more concerning is the unacknowledged transfer of financial data of individual customers. As done under telecommunications data retention regulations, SIAs can access indirectly large pools of personal data established without a clear security-related mandate.
Inspired by such developments, this doctoral project explores the implications of the ECJ’s 2014 data retention ruling (and related German Federal Constitutional Court judgments) for contemporary anti-money laundering schemes. Concerned less with transactional screening itself, it explores the legal and regulatory implications of bypassing conventional rules of law enforcement through financial monitoring and reporting. Relying on a com­bi­nation of rights discourse, security law theory, doctrinal analysis, and statutory interpretation, this project exempli­fies the Department of Public Law’s research commitment to identifying and reviewing new and unanticipated chal­lenges to fundamental rights.