DISSEN TING OPINION OF JUDGE VEHABOVI Ć

I did not vote with the majority, which found that there had been a violation of Article 8 of the Convention concerning the applicant ’ s reasonable expectation of privacy and the existence of an interference with the applicant ’ s rights under Article 8 of the Convention.

The information disclosed on 7 August 2006 to the local authorities by the Internet Service Provider (ISP) was not traffic data or personal information concerning the applicant; it was the address and the name of the applicant ’ s father who was the subscriber to the internet service. It appears from that fact that the applicant could not claim to be a victim because the subscriber information which the ISP had disclosed to the police concerned his father, who is not the applicant in this case, as pointed out by the Government.

A reasonable suspicion of the transfer of files including child pornography, which is a criminal act, required the local authorities to investigate further, and the information concerning the applicant, that is to say traffic data relating to the internet activities made from this IP address, was revealed to the police on 14 December 2006 after the District Court had issued an order demanding that the ISP disclose both the personal data of the subscriber and traffic data linked to the IP address in question. In addition to that the investigating judge of the Kranj District Court on 12 January 2007 issued an order to carry out a house search and only then was the applicant connected to the traffic data in question and only from that moment can the applicant claim to be a victim.

In my opinion, the retrieved IP address which led to the address and the name of the applicant ’ s father is not of sufficient proximity to qualify as the personal data of the applicant himself, as it revealed the identity and traffic data of neither the applicant nor his father.

The Court has on a number of occasions referred to the Data Protection Convention which defines personal data in Article 2 as “any information relating to an identified or identifiable individual”, (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland , 931/13, § 133, and Amann v. Switzerland , 27798/95, §65). Local authorities did not receive information on the applicant; the applicant was not an identified or an identifiable individual prior to the court order which was the basis for the Court ’ s finding of a violation of Article 8 of the Convention. I therefore do not agree with the majority ’ s finding that there was an interference contrary to the applicant ’ s right under Article 8 of the Convention.

Concerning the reasonable expectation of privacy, I do not agree that the subjective angle of the applicant on his expectation for privacy should be taken into account where a criminal activity is under consideration. In nearly all cases, criminals would not wish their activities to be known to others. This kind of expectation of privacy would not be reasonable when based on an unlawful, or in this case a criminal, incentive. An expectation to hide criminal activity should not be considered as reasonable. On a second issue concerning the reasonable expectation of privacy, the applicant exchanged files including child pornography (which the Chamber, in my opinion, intentionally omitted from § 115) through a public network account which was visible to others. The applicant therefore knew, or ought to have known, that his actions were not anonymous. The applicant did not intend to conceal his activity at the time of commission of the offence.

Furthermore, in many cases in which an interference was found, the Court considered the prevention of crime as constituting a legitimate aim. For example in Nada v. Switzerland , the Court decided that “[t]he applicant did not appear to deny that the impugned restrictions were imposed in pursuit of legitimate aims. The Court finds it established that those restrictions pursued one or more of the legitimate aims enumerated in Article 8 § 2: firstly, they sought to prevent crime” ( Nada v. Switzerland , 10593/08, § 174). Also, in S. and Marper v. the United Kingdom, “[t]he Court agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and, therefore, prevention of crime. While the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders” (see S. and Marper v. the United Kingdom , 30562/04 30566/04, § 100). For these reasons, I do not agree with the finding of the majority that there was a violation of the applicant ’ s rights the under Article 8 of the Convention.

[1] . Ayn Rand, The Fountainhead.

[2] . See Daniel Solove, “ Speech, Privacy and Reputation on the Internet ” at: Saul Levmore and Martha Nussbaum, E ds . , The Offensive Internet: Speech, Privacy, and Reputation , Cambridge, Mass.: Harvard University Press, 2011, with further references.

[3] . I bid . , pp. 20 and 22.

[4] . Warren & Brandeis, the Right to Privacy, 4 HARV. L. REV. 193 (1890) .

[5] . Osborn v. United States, 385 U.S. 323 (1966).

[6] . Katz v. United States, 389 U.S. 347 (1967).

[7] . Halford v. the United Kingdom , 25 June 1997, Reports of Judgments and Decisions 1997 ‑ III.

[8] . Copland v. the United Kingdom , no. 62617/00, ECHR 2007 ‑ I.

[9] . GC , no. 61496/08, ECHR 2017 (extracts) .

[10] . Smith v. Maryland, 442 U.S. 735 (1979).

[11] . S ee Alexandra D. Vesalga, Location, Location, Location: Updating the Electronic Communications Privacy Act to Protect Geolocational Data, 43 GOLDEN GATE U.L.REV. 459(2013), referring to United States v. Bynum, 604 F.3d 161, 164 & n.2 (4th Cir. 2010); United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008); United States v. Forrester, 512 F.3d 500, 509-10 (9th Cir. 2008) , etc.

[12] . United States v. Heckenkamp, 482 F.3d 1 142, 1 146 (9th Cir.   2007) .

[13] . United States v. Howe, 2011 WL 2160472 at . 7  (W.D.N .Y. May 27, 2011).

[14] . State v. Reid, 945 A.2d 26, 28 (N.J. 2008).

[15] . The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Freedom of Expression and the Internet (31 December 2013).

[16] . PACE Resolution on Mass Surveillance 2045 (21 April 2015).

[17] . Malone v. the United Kingdom , 2 August 1984, Series A no. 82.

[18] . UN Human Rights Council Resolution on the Right to Privacy in the Digital Age, U.N. Doc. A/HRC/34/L.7/Rev.1 (22 March 2017).

[19] . Bruce Schneier, “Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World”, New York, N.Y.: W.W. Norton & Company, 2015.