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Statewatch News online: Telecommunications surveillance - a deal being done?

28 March 2012

EU surveillance of telecommunications
European Parliament committee chair tries to reach a "deal" with the Council on the surveillance of communications

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There were extraordinary moves last week involving the Council of the European Union (the 15 EU governments) and the chair of the Committee on Citizens' Freedoms and Rights, Ana Palacio (EPP, conservative group, Spain) to reach a "deal" over the retention of telecommunications data for law enforcement agencies use - a "deal" which would have seen the European Parliament adopting as a negotiating position acceptable to the Council.

The parliament's Committee on Citizens' Freedoms and Rights agreed its 2nd reading position on the proposed revision of the 1997 Directive on 18 April. On the critical Article 15.1. the Committee voted 25 votes to 19 to maintain its 1st reading position opposing the retention of communications data (except in specific, authorised, investigations - as at present). The EPP group (conservative) of which Ana Palacio, Spanish MEP and chair of the Committee, is a member led the opposition to the majority view.

Following this vote the Spanish Presidency of the Council of the European Union undertook:

"a number of informal contacts... [with] interested members of the European Parliament with a view to exploring the possibilities for a pre-negotiated agreement on a set of compromise amendments to be adopted at the plenary vote, now scheduled for 30 May 2002"

On 3 May and Monday 13 May the Council's Telecommunications Working Party examined "a number of compromise texts" including that for Article 15.1.

On Wednesday 15 May, a new amendment to Article 15.1. was circulated by Ana Palacio, committee chair, which was to be presented to the Council on behalf of the European Parliament as a "compromise" agreement - an amendment which was virtually the same as the one rejected by the Committee and which accepts the Council's demands for data retention. It was intended that this amendment be sent to the Council for agreement by COREPER (the permanent representatives of the 15 EU governments based in Brussels) - however this formal approach was blocked by the parliament's negotiating team when it learnt of the move.

However, the Spanish Presidency of the Council simply picked up the amendment lodged in Ana Palacio's name (amendment no 31) and presented a report addressed to COREPER dated 16 May (the next day) saying that it was:

"acceptable with small modification"

which is not at all surprising as it is has the same effect as the Council's common position.

It also accepted with small modification another linked amendment (no 32) lodged by Ana Palacio changing the "Recital" linked to Article 15.1. This would:

"allow Member States to require the provider of a public communications network or publicly available electronic communications service to retain traffic and location data in accordance with the law"

The parliament's Committee's report proposed 23 amendments to the Council's common position and further amendments, numbered 24 to 43 have been put forward to be considered at the plenary session. Of the 23 amendments put forward in the parliament's committee report only 2 minor changes are accepted by the Council.

Tony Bunyan, Statewatch editor, comments:

"The vote in the European Parliament on 30 May will mark a defining moment for the future of democracy in Europe. It is to be hoped that the parliament will stand firm because if it does not it will mean an end to privacy in communications.

It is quite extraordinary that the chair of the European Parliament committee which is meant to defend the freedom and rights of citizens appears to be actively working with EU governments to place everyone's communications under surveillance - a practice that is rightly associated with authoritarian regimes"

Article 15.1 - the different positions

1. The Amendment (rapporteur: Marco Cappato) agreed by the Committee on Citizens's Freedoms and Rights on 18 April as its 2nd reading position, maintaining the 1st reading position agreed in November 2001 (amending the Council's common position under 4 below) reads as follows:

15.1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate, proportionate and temporary measure within a democratic society to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. These measures shall be entirely exceptional and based on a specific law which is comprehensible to the general public, and shall be authorised by the judicial or other competent authorities on a case-by-case basis. Under the European Convention on Human Rights and the EU Charter of Fundamental Rights and pursuant to rulings issued by the European Court of Human Rights, any form of widespread general or exploratory electronic surveillance is prohibited.

2. The EPP/Ana Palacio amendment to the above on 18 April and rejected by the Committee (amending the Council's common position under 4 below) reads as follows:

15.1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary measure to safeguard national security, (i.e. State security) defence, public security or the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system, as referred to in Article 13(1) of Directive 95/46/EC. To this end Member States may inter alia provide for the retention of data for a limited period justified on the grounds laid down in this paragraph, in accordance with the general principles of Community law, in particular the European Convention on Human Rights and pursuant to rulings issued by the European Court of Human Rights.

3. The new Ana Palacio amendment put forward on 15 May "acceptable" to the Council (amending the Council's common position under 4 below) reads as follows:

15.1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national or State security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end Member States may inter alia adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures included in this article shall be in accordance with the general principles of Community law including those referred to in Article 6 paragraphs 1 and 2 of the Treaty on European Union.

4. The Council's common position on data retention in Article 15.1, adopted 28 January, reads as follows:

15.1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary measure to safeguard national security, (i.e. State security) defence, public security or the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system, as referred to in Article 13(1) of Directive 95/46/EC. To this end Member States may inter alia provide for the retention of data for a limited period justified on the grounds laid down in this paragraph, in accordance with the general principles of Community law.

Comment: the Council's position is intended to deflect criticism by arguing that the proposal is non-binding and therefore up to each member state to enact. This ignores the evidence on the record that the Council's plans assume that every EU state allows the retention of data and allows access to this for the "law enforcement agencies".

Background

At the plenary session on 29-30 May in Brussels the European Parliament will be discussing a crucial amendment to the position on the retention of telecommunications data. The European Commission put forward a proposal on 12 July 2000 to introduce a number of non-controversial amendments to the 1997 EU Directive on privacy in the telecommunications sector. By early last year it became clear that the Council intended to use this opportunity to effect major changes to meet the long-standing demands of the EU's law enforcement agencies (police, customs, immigration and internal security agencies) for the retention of all traffic and location telecommunications data (phone-calls, e-mails, faxes and internet usage) and access to it.

In reaction to 11 September the Council decided that the issue of data retention - not to combat terrorism but crime in general - should be a priority.

In November 2001 the plenary session of the European Parliament adopted its 1st reading position which opposed the Council's demands. After the Council made its view known in December (it was formally adopted on 28 January) the European Commission caved in and withdrew its long-standing opposition. The proposal therefore returned to the parliament for a 2nd reading and on 18 April the Committee on Citizens Freedoms and Rights re-interated its opposition and maintained its previous view, see: the vote in the Committee on 18 April If the parliament maintains its position the issue will move into the co-decision process and a conciliation committee (involving the Council European Parliament and Commission) will be set up.

As Statewatch has revealed, a number of EU governments are working on a draft Framework Decision (under Article 34.2.b) to make it binding on all 15 EU states to implement a new law requiring public communications network or publicly available electronic communications service to retain traffic and location data - as soon as opposition in the European Parliament is overcome, see: Binding Framework Decision

For more background please see: S.O.S.Europe
Story filed 20.5.02

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