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EU: Mandatory data retention - the shifting sands of "compromises" reached out of public view
01 November 2005
The politics of the "compromises" by the European Parliament and by the Council of the European Union (the 25 governments) is hard to follow - where normally the parliament's amendments to the Commission's draft proposal for mandatory data retention would be discussed and voted on in open Committee meetings they are being negotiated in private (both within the parliament and between the parliament and the Council).
European Parliament's "compromise" amendments
There are some significant shifts in the parliament's "compromise amendments" between those of
14 November and
17 November:
1. (Article 3 para 2) Where the earlier draft said the retained data should only be provided through a
"push system, in specific cases", ie: law enforcement agencies (LEAs) would have to request data in specific cases which would be located and handed over by the service providers rather than a "pull system" under which the LEAs would have direct access to look for whatever they want.
This has been deleted and replaced by, data to be provided "following the approval of the judicial authorities in specific cases". This amendment is included in the final text it would have the same effect as the earlier version.
The inclusion of this amendment is essential as without it the LEAs would effectively be "self-regulating" - and the example from the UK where LEAs have unfettered access to a service provider would become the norm, see: Data retention and police access in the UK - a warning for Europe
2. (Article 3a new, k in 17.11.05) The new version says that data can be forwarded to:
"third countries, or other third parties only under special circumstances"
What "special circumstances" mean is utterly unclear.
3. (Article 9) This article on the provision of statistics has a significant deletion in the 17.11.05 amendments: "including intelligence and security services" has been deleted.
The Council's position
Following the first "trialogue" (Council, Commission and European Parliament) meeting on 15 November a Council report from the UK Presidency (doc no: 14328/05) The next "trialogue" meeting is on 22 November. The report to COREPER (committee of permanent representatives of each EU government, based in Brussels) asks how much "flexibility exists within the Council". It sets out 11 areas where the European Parliament's amendments require changes to the draft Directive from the Commission. These are:
"1. Data should be retained for the purpose of investigation, detection and prosecution of serious criminal offences, where "serious criminal offences" would be defined by way of reference to the offences listed in Article 2(2) of the Framework Decision on the European Arrest Warrant, and not for prevention purposes.
2. The list of data should be shifted from the Annex to the body of the text of the draft Directive and the references to comitology procedures should be deleted.
3. The draft Directive would replace Article 15(1) of Directive 2002/58/EC with the effect that the list of data in the draft Directive would be a "maximum list" and that Member States could not provide, on a national basis, for the retention of other data.
4. Location data should be limited to data at the start of a communication.
5. The list of data should, concerning Internet data, be limited to log-on and log-off data (i.e. the IP address).
6. Data on unsuccessful call attempts should not be included, but Member States should have the possibility to provide for their retention on the basis of national legislation.
7. The draft Directive should contain detailed pro