28 March 2012
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Surveillance
of communications
EU: data
retention to be "compulsory" for 12-24 months
- draft Framework
Decision leaked to Statewatch (analysis and full-text: pdf file)
Statewatch's analysis shows that there are "grave
gaps in civil liberties protection":
- there are no grounds for refusing to execute a request on human
rights grounds
- there are no limits as to what data can be exchanged where
member states allow for the retention of data on all crimes,
not just the 32 listed
- there is no reference to supervisory authorities on data protection
- there is no reference to the individual's right to correct,
delete, block data nor compensation for misuse or for related
judicial review
- no reference to controls on the copying of data
- no rules for checking on the admissibility of data searches
Even as the European Parliament was discussing and voting on
fundamental changes to the 1997 EC Directive on privacy in telecommunications
the Belgian government was drafting (and circulating for comment)
a binding Framework Decision on the retention of traffic data
and access for the law enforcement agencies - a copy of which
has been leaked to Statewatch.
Under the guise of tackling "terrorism" the EU's Justice
and Home Affairs Minister decided on 20 September 2001 that the
law enforcement agencies needed to have access to all traffic
data (phone-calls, mobile calls, e-mails, faxes and internet
usage) for the purpose of criminal investigations in general.
What stood in the way was the 1997 EC Directive on privacy in
telecommunications. This was the follow-up to the hard-won 1995
EC Directive on data protection, now law across the EU. The 1997
EC Directive said that the only purpose for which traffic data
could be retained was for billing (ie: for the benefit of customers)
and then it had to be erased. Law enforcement agencies could
get access to the traffic data with a judicial order for a specific
person/group.
The "deal" agreed between the Council (the 15 governments)
and the two largest parties in the European Parliament (PPE,
conservative and PSE, Socialist groups) means that there are
two crucial amendments: i) the obligation to erase data has been
deleted and ii) EU member states are allowed to pass laws requiring
communications providers to keep traffic data for a so-called
“limited period”.
One of the arguments used to legitimise the move during the discussions
in the European Parliament was that the change to the 1997 Directive
simply enabled governments to adopt laws for data retention if
national parliaments agreed. The document leaked to Statewatch
shows that EU governments always intended to introduce an EC
law to bind all member states to adopt data retention.
The draft Framework Decision says that data should be retained
for 12 to 24 months in order for law enforcement agencies to
have access to it. In theory the agencies will still need a judicial
order to trawl back through the records of a targeted person(s)
- though this legal nicety has never stopped the internal security
agencies getting access in many countries. The Framework Decision
also carries a strong hint that another measure is in the pipeline,
one to allow law enforcement agencies access to the content as
well as the traffic data of communications.
Now the traffic data of the whole population of the EU (and the countries joining) is to be held on record. It is a move from targeted to potentially universal surveillance.
On 14 August the Danish Presidency put out to all EU governments
a "Questionnaire on traffic data retention" for completion
and return "preferably by e-mail" by Monday 9 September.
See below for full-text of documents 11490/02 and 11490/1/02
- the only difference between the two documents is that the reference
to "in collaboration with the Commission" has been
deleted from the final version.
Tony Bunyan, Statewatch editor, comments:
““EU governments claimed that changes to the 1997
EC Directive on privacy in telecommunications to allow for data
retention and access by the law enforcement agencies would not
be binding on Members States - each national parliament would
have to decide. Now we know that all along they were intending
to make it binding, “compulsory”, across Europe.
The right to privacy in our communications - e-mails, phone-calls, faxes and mobile phones - was a hard-won right which has now been taken away. Under the guise of fighting "terrorism" everyone's communications are to be placed under surveillance.
Gone too under the draft Framework Decision are basic rights of data protection, proper rules of procedure, scrutiny by supervisory bodies and judical review”
Background documents
See follow up story: Danish Presidency denies data retention
revised 23.8.02
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