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EU: NGO letter to the European Parliament on mandatory retention of communications data

01 June 2005

- from European Digital Rights, Privacy International and Statewatch

Letter also available in French, German and Spanish

06/06/2005

To the presidents of the political groups in the European Parliament

Monday 6 June 2005

Dear Sir/Madam,

We kindly request your attention on the matter of the plenary vote (scheduled for 7 June 2005) on the report from LIBE rapporteur Alexander Alvaro on mandatory data retention, nr. 2004/0813(CNS). We are appealing to you on behalf of European Digital Rights, a not-for-profit association of 17 digital civil rights organisations from 11 European countries, and Privacy International, an international non-governmental organisation with members in over 30 countries, and Statewatch, an organisation that monitors civil liberties in Europe with correspondents in 14 European countries.

Communications data retention is a policy that significantly expands powers of surveillance in an unprecedented manner. It simultaneously revokes many of safeguards in European human rights instruments, such as the Data Protection Directives and the European Convention on Human Rights.

As we expressed to the European Commission in September 2004, in a statement that was endorsed by 200 organisations from the private sector and civil society:

Data retention is an invasive tool that interferes with the private lives of everyone in Europe.

Retaining personal data on everyone is an illegal practice in terms of Article 8 of the European Convention on Human Rights as it is disproportionate security gained from retention may be illusory, as it is likely that traffic data that is associated to one individual may actually be linked to activity taken by another, or by a process that is unrelated to the activities of that user.

The means through which this policy is being pursued is illegitimate, as some member states who have failed to pass this policy through their own Parliaments are now trying to push it through the EU instead in the name of harmonisation and international cooperation.

Such a regime is likely to have costly repercussions on the delivery of telecommunications products and services within Europe. This will not only place European industry at a disadvantage, it will also likely lead to increased costs for consumers, and reduced growth in a sector that is essential to the advancement of the European economy and society.

We also endorse the report from the LIBE rapporteur. No research has been conducted anywhere in Europe into the need and necessity of creating such a large-scale database containing such sensitive data on the 450 million people in Europe. We also agree with the rapporteur that the measure is ineffective and does not comply with the fundamental principle of the presumption of innocence.

The Justice and Home Affairs Council has continuously rejected consideration of less privacy-invasive means to combat crime, such as through the preservation of specific data on individuals of interest. Rather, the Council constantly widens the scope of the retention. For instance, the very purpose of retention and access to this data began as a project to 'the fight against terrorism', though it soon thereafter expanded to 'terrorism and serious crime'. It did not take long for the Council to widen it further to 'terrorism and crime', only to change it finally to 'criminal offences'. This widening of the scope without any evidence regarding value of this policy to law enforcement raises serious doubts about the possibility of ever being able to meet a proportionality test.

But perhaps most offensive is that the draft Framework decision completely lacks a legal basis in the third pillar. The JHA Council seems resigned to ignore all the serious legal protests