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Council and European Parliament on collision course over data retention (telecommunications surveillance)

28 March 2012

At its meeting on 16 November the Council's Working Party on Telecommunications finalised the draft common position on the Commission proposal to revise the 1997 EU Directive on the processing of personal data and the protection of privacy in the telecommunications sector (full-text dated 20 November below). The position represents the views of all 15 governments in the Council of the European Union.

The Council's "common position" is to be adopted at the Telecommunications Council at its meeting on 6-7 December in Brussels. This follows the adoption, by the European Parliament at its plenary session in Strasbourg on 14 November 2001, of its 1st reading report on the proposed new Directive by 339 votes in favour, 92 against and 89 abstentions. The final decision has to be taken under the "co-decision" procedure whereby the Council and the parliament have to agree on the text.

The positions of the Council and the European Parliament are diametrically opposed on the issue of the retention of telecommunications data: the Council wants all traffic data for e-mails, phone-calls, faxes and internet usage to be retained for so the law enforcement agencies can have access to it while the parliament report argues that - as under the existing EU Directive - surveillance should be exceptional and authorised in each case by a specific court or other order and that "any form of wide-scale general or exploratory electronic surveillance is prohibited".

The automatic retention of all telecommunications traffic data now being proposed by EU governments was demanded in the letter from President Bush (US/Bush letter) even though a similar power does not exist in the US - not even after the far-reaching US Patriot Act was passed last month.

Text of the different positions

The text the Council is intending to adopt on Article 15.1 reads as follows:

"Article 15
Application of certain provisions of Directive 95/46/EC

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) to (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, 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 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."

The text of the European Parliament report, Article 15.1 read as follows:

"Article 15, paragraph 1

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) to (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, based on a specific law which is comprehensible to the general public and be authorised by the judicial or other competent authorities on a case-by-case basis. Under the European Convention on Human Rights and pursuant to rulings issued by the European Court of Human Rights, any form of wide-scale general or exploratory electronic surveillance is prohibited."

The text of the Commission's proposal on Article 15.1 reads as follows:

"Article 15, paragraph 1

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) to (4), and Article 9 of this Directive when such restriction constitutes a necessary measure 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."

Tony Bunyan, Statewatch editor, comments:

"The resolution of this issue is going to define whether the EU is going to maintain data protection and the right to privacy as fundamental standards in any democracy or whether it is going to continue down what is becoming an increasing authoritarian road where the entire population of the EU can be placed under surveillance"

1. Full-text of the Council's common position: 13883/01 (pdf)
2. Full-text of adopted European Parliament report (which includes text of the original Commission proposal): Cappato
3. Data protection or data retention in the EU? Special Statewatch Report
For full background and documentation on this issue see: Statewatch documentation centre.