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EU governments want the retention of all telecommunications data for general use by law enforcement agencies under terrorism plan

01 September 2001

At the specially called meeting in Brussels of EU Justice and Home Affairs Ministers on 20 September "Conclusions" were adopted to introduce new measures to combat terrorism. However, the plans are not just concerned with combating terrorism but with introducing sweeping new surveillance of telecommunications powers for general use by the law enforcement agencies. The Conclusions:

i) require all telecommunications providers to retain data (from phone-calls, e-mails, faxes, websites and internet usage) and for law enforcement agencies to have access "for the purposes of criminal investigation" (emphasis added) and;

ii) call on the European Commission to "review EU legislation to ensure that it contributes to law enforcement efforts" - this is a clear reference to the demands of the law enforcement agencies to amend the EU Directives on data protection and privacy which require communications providers to erase or make anonymous data.

The law enforcement agencies can, under the existing EU Directives, be granted powers to intercept communications in cases of national security and criminal investigations.

The proposed measures are, at this stage, only agreed in principle. It stills requires the European Commission to put forward proposals (if it accepts the Council's proposals) and the European Parliament and national parliaments (under scrutiny powers) to agree the measures before the Council can formally adopt them.

General surveillance to be introduced by the back door

In March this year the Council of the European Union (the 15 EU governments) discussed a draft set of "Conclusions" put forward by Sweden and France on the "needs of law enforcement agencies" to get access to telecommunications data: ENFOPOL 7277/01 They called for the provision in EU Directives that data be erased or made anonymous to be removed and for law enforcement agencies to have access to this data. The draft "Conclusions" also called on the European Commission to review the existing Directives on data protection and privacy in light of the needs of law enforcement.

These "Conclusions" were not formally adopted because of reservations by some governments and the controversial nature of the demands.

The Conclusions adopted by the special meeting of EU Justice and Home Affairs Ministers on 20 September include the following - which virtually replicate the unadopted demands:

"4. The Council requests the European Commission to submit proposals for ensuring that law enforcement authorities are able to investigate criminal acts involving the use of electronic communications systems and to take legal measures against their perpetrators. In this context, the Council will be making a particular effort to strike a balance between the protection of personal data and the law enforcement authorities' need to gain access to data for the purposes of criminal investigations.

5. The Commission, Council and European Parliament, in drawing up all EU legislation, should ensure that the potential impact on the fight against crime and terrorism is fully considered. The Council calls on the Commission to review EU legislation to ensure that it contributes to law enforcement efforts."

Data protection or data retention?

Statewatch prepared, before 11 September, a report on the "state of play" on the progress of the proposed revision of the EU Directive on privacy in the telecommunications sector. This has been at the centre of demands by the EU law enforcement agencies for data to be retained and their right of access to to. The report from the Committee on Citizens Freedoms and Rights has come out against these new powers thus backing the position taken by the European Commission and the EU's Data Protection Commissioners. Special Statewatch report on: Data protection or data retention in the EU? (pdf file)