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Why the ECJ's metadata ruling endangers the safety of women

Until we live in a society in which women are safe, we might need to compromise on mass data collection

In a major ruling this Tuesday, the European Court of Justice (ECJ) effectively banned the use of retained communications data, or metadata, in solving crimes that aren’t deemed a threat to national security. A big win for democratic rights across the EU? Yes – but not if you’re a woman.

In its landmark judgement, the ECJ ruled in favour of Irishman Graham Dwyer who, in 2015, was convicted of the 2012 murder of Elaine O'Hara. Described by prosecutors as “very nearly the perfect murder” due to the lack of both witnesses and material evidence, Dwyer would have gotten away with it, if not for his phone records, which tied him to the crime scene. The main rationale, according to the ECJ, is that mass and indiscriminate data collection – and retention – isn’t compatible with living in a democratic society. Because Dwyer’s phone records were derived through this practice, it may render this key piece of evidence potentially inadmissible. Although I’m a firm believer in citizens’ right to privacy, including when it comes to their data, this decision has made me anxious about the safety of women in wider society. 

The ruling, of course, doesn’t apply to investigating terrorist attacks, with the ECJ claiming criminal behaviour, even serious in nature, cannot be treated in the same way as a threat to national security. Estimates, however, show femicides are roughly ten times more prevalent than terrorism in the EU. What’s more, while terrorist attacks in Europe dropped by 68% between 2018 and 2021, several EU member states, including Italy, Germany, and Poland, reported significant increases in violence against women since the start of the pandemic.

While the ECJ ruling, in theory, protects us from overreaching law enforcement agencies, the fact it’s willing to make an exception for one type of crime, but not another, sends a clear message that violence against women is simply not as important. Moreover, it raises the question as to whether Dwyer will now be allowed to walk free, and how this could embolden mens’ attempts to get away with murder – literally. Worse yet, the ruling may hinder ongoing investigations into femicide – and perhaps dredge up historic cases, too, in which data retention issues applied.

It’s especially disheartening considering 2021 murders of my fellow Londoners – marketing executive Sarah Everard and primary school teacher Sabina Nessa. I’ve always partaken in the practice of texting friends to make sure they got home okay, or even asking male friends to escort me. These two incidents, though, have heightened our feeling that we’re risking our lives by simply going to the pub, walking home from a friend’s house, or even going for an afternoon run, as was the case with Irish primary school teacher Ashling Murphy earlier this year. Everard’s case is particularly poignant. Her killer, police officer Wayne Couzens, was tied to the location of Everard's disappearance, as well as the area her body was found, using cell site data, which identifies a phone’s location at a specific time.

What would happen if, similarly to the Dwyer case, the incriminating metadata was found several years – as opposed to several days – after her disappearance, but provisions blocked it from being used? If not for the additional CCTV footage used to prosecute Couzens, based on the ECJ’s ruling, should he simply be allowed to walk free? If one of the world's most influential courts can't be flexible enough to incorporate womens' safety into their legal judgements, which entity is supposed to protect us as human beings? I agree with the ECJ that data privacy is an inherent right in a democratic society, but it's an idealistic view that goes against our reality. While that same society is capable of raising men to abduct, rape, and murder women, we might need to make compromises on how privacy and data retention are seen.

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