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UK-EU: Call for mandatory data retention of all telecommunications

01 July 2005

The draft proposal on the table is:

1. legally flawed and open to legal challenge
2. confused as to its scope - is it to deal with terrorism or crime in general?
3. requires service providers to retain data they have never collected before
4. the cost and technical capacity of service providers is unknown
5. the value in terms of tackling terrorism is highly questionable
6. it will store data on all the communications of everyone in the EU, suspect or not
7. there are no data protection provisions nor any external supervision

A special meeting of the EU Justice and Home Affairs Council will take place in Brussels on Wednesday (13 July) following the terrorist bombings in London on 7 July. The UK Home Secretary, Charles Clarke, will call for the mandatory retention of all telecommunications traffic data across the EU. He is quoted as saying:

"Telecommunications records, whether of telephones or of e-mails, which record what calls were made from what number to another number at what time, are of very important use for intelligence. I am not talking about the content of any call but the fact that a call was made" (Times, 11.7.05).

Mr Clarke is also to address the Committee on Civil Liberties of the European Parliament.

A proposal for an EU Framework Decision on the mandatory retention of all traffic data was put forward by the UK, Ireland, France and Sweden on 28 April 2004. The proposal covers the retention of communications data by service providers, access to the data by law enforcement agencies and the exchange of data between EU states. The traffic data to be retained would cover phone-calls, e-mails, faxes, mobile phone calls (and their location) and internet usage.

Flawed legal base

In April 2005 Statewatch published a legal analysis of the proposal based on the legal Opinions of the Council and Commission Legal Services who both concluded that the measure required two separate legal bases: See: Statewatch analysis: EU: Data Retention proposal partly illegal, say Council and Commission lawyers

The problem is recognised in the 24 May 2005 draft of the proposal: EU doc no: 8864/1/05 (pdf). The report from the EU Presidency says:

"The proposal for a Framework Decision is based on Article 31(1)(c) and 34(2)(b) TEU. The Commission reserved at an early stage of the negotiations a scrutiny reservation on the legal basis, and maintained that position at the JHA Council on 2 December 2004. After having studied the question, the Commission has entered a reservation on the legal basis. The Commission services have in 7735/05 COPEN 64 JUR 138 given the reasons for this reservation. In the view of the Commission, the parts of the proposal providing for a harmonisation of the categories of data to be retained and the period for retaining such data fall within EC competence and would need to be adopted on the basis of Article 95 TEC.

The Legal Service of the Council has given its opinion on the question in 7688/05 JUR 137 COPEN 62 TELECOM 21. The Legal Service has come to the conclusion that the harmonisation of data to be stored by service providers during a given period and setting up the duration of that period are matters for the Community's sphere of competence, and has specified that these aspects may not be the subject of a Framework Decision based on Title VI TEU, as such a Framework Decision would affect the provisions of Directive 2002/58/05 and would thus be adopted in breach of Article 47 TEU. It follows from the conclusions that other parts of the draft Framework Decision, such as Article 6 (access to retained communication data) and Article 7 (requests for transmission of retained communication data under judicial cooperation in criminal matters), do fall within Title VI TEU."

This basically means that the re