Judgment Approved by the court for handing down. which the ECtHR accepted prior authorisation of individual warrants by the Secretary of State even where the interception of content was concerned. (b) Though the CJEU was prepared to describe data retention as a “particularly serious” infringement of fundamental rights, concrete examples of harm are not provided and are 95 not immediately evident. While there may be some for whom the retention of data “is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance”(Digital Rights Ireland, para 37), the survey evidence suggests that this is 96 putting it rather high. (c) There is a case for excluding the use of retained communications data in relation to the most trivial of offences (5.67(e) above). But if the mark for “serious crime” is set too high, damaging crimes will go needlessly unpunished and public confidence in law enforcement will be reduced. (d) To limit retention to “particular persons likely to be involved, in one way or another, in a serious crime”, and/or to “persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences”(Digital Rights Ireland, para 59), would not only reduce the effectiveness of data retention in identifying targets but would carry other risks, since to seek to apply such nebulous distinctions would be to court allegations of prejudice, profiling and unlawful discrimination. 5.79. The wider implications of the judgment also need to be reflected upon. Though Digital Rights Ireland did not concern the bulk interception of content, it is arguable that its principles (including in relation to prior independent authorisation) should apply in that area with at least the same force. Indeed the CJEU stated in terms that the bulk interception of content would be more intrusive, since unlike the Data Retention Directive it would affect the “essence” of the fundamental right to privacy (para 39). There may be implications also for other types of surveillance in relation to which types of self-authorisation are practised, in particular by the security and intelligence agencies. All this is subject to EU law being applicable: though to the extent that Digital Rights Ireland may in the future be adopted or followed by the ECtHR, that distinction will cease to matter.” The Strasbourg case law Davis & Ors v SSHD