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EU - Mandatory retention of telecommunications data would be unlawful

01 November 2003

Privacy International have obtained a Legal Opinion from the international law firm Covington and Burling which presents a devastating critique of plans by EU governments and the Council of the European Union to introduce the mandatory retention of communications data. The Opinion examines in particular the draft EU Framework Decision on communications data retention and access to it leaked by Statewatch in August 2002.

The Opinion concludes that:

"The data retention regime envisaged by the (EU) Framework Decision, and now appearing in various forms at the Member State level, is unlawful.

Article 8 of the European Convention on Human Rights (ECHR) guarantees every individual the right to respect for his or her private life, subject only to narrow exceptions where government action is imperative. The Framework Decision and national laws similar to it would interfere with this right, by requiring the accumulation of large amounts of information bearing on individuals' private activities. This interference with the privacy rights of every user of European-based communications services cannot be justified under the limited exceptions envisaged by Article 8 because it is neither consistent with the rule of law nor necessary in a democratic society.

The indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behaviour to avoid unwanted intrusions. Moreover, the data retention requirement would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society."

The surveillance of telecommunications - phone calls, e-mails, faxes, mobile phone calls and internet usage - has been on the "wish-list" of the EU law enforcement and security agencies for years. After scathing critiques by civil society, previous attempts to introduce the surveillance of communications on a mandatory basis EU plans were shelved. Now the UK is one of ten EU governments which are trying to introduce national legislation to allow for data retention for law enforcement and internal security purposes. Current laws do provide for the interception of communications of a specific, named individual(s) or organisation based on a lawful order (often by a judge or the Home Secretary in the UK) for the purpose of national security or the investigation of a serious criminal offence.

Tony Bunyan, Statewatch editor, comments:

"The proposal for EU-wide Framework Decision on mandatory data retention drafted last summer was put on the back-burner after it was leaked. Instead EU governments decided to adopt laws at national level so that they could, when a majority were in place, bring the EU-wide measure out from under the table and argue the need for "harmonisation".

The legal opinion for Privacy International conclusively shows that the introduction of national laws and an EU-wide one would be contrary to the European Convention on Human Rights. To place the whole population of Europe under surveillance is shown to be unlawful, disproportionate, and contrary to the rule of law and democratic standards"

Documentation
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1. Full-text of the Legal opinion for Privacy International by Covington and Burling: Legal opinion (pdf)