Mandatory data retention by the backdoor
01 November 2002
A special analysis on the surveillance of telecommunications by Statewatch shows that: i) the authorised surveillance in England, Wales and Scotland has more than doubled since the Labour government came to power in 1997; ii) mandatory data retention is so far being introduced at national level in 9 out of 15 EU members states and 10 out of 15 favour a binding EU Framework Decision; iii) the introduction in the EU of the mandatory retention of telecommunications data (ie: keeping details of all phone-calls, mobile phone calls and location, faxes, e-mails and internet usage of the whole population of Europe for at least 12 months) is intended to combat crime in general.
UK: Surveillance more than doubles under Labour
Figures published by the Interception of Communications Commissioner for England, Wales and Scotland (no figures have ever been made available on Northern Ireland) for 2001 appear to show that the number of interception warrants issued dropped from 1,900 in 2000 to 1,314 in 2001. But the true picture is quite the reverse. Changes to warrants, "modifications", which previously required a new warrant have been excluded from the figures - when these are added it shows that the total number of warrants issued in 1996 (the last full year of the Conservative government) was 1,370 and for 2001 the total was 3,427. Moreover, even these figures are a major under-estimate due to changes introduced under the Regulation of Investigatory Powers Act 2000 (RIPA) (see analysis page 17).
EU member states bring in mandatory data retention
On 12 July 2002 the EU agreed fundamental changes of the 1997 EC Directive on privacy and telecommunications preventing the erasure of data and allowing member states to introduce new laws requiring communications providers to keep traffic data and make it accessible to the law enforcement agencies).
A draft, binding, EU Framework Decision prepared by the Belgian government (and backed by the UK) has temporarily been put on the shelf due to widespread criticism. But a secret document shows that at the national level nine out of 15 member states have, or are planning to, introduce mandatory data retention (only two member states appear to be resisting this move). In due course it can be expected that a "harmonising" EU measure will follow.
Terrorism pretext for mandatory data retention
Mandatory data retention had been demanded by EU law enforcement agencies and discussed in the EU working parties and international fora for several years prior to 11 September 2000. On 20 September 2001 the EU Justice and Home Affairs Council put it to the top of the agenda as one of the measures to combat terrorism. But now, over 16 months later, it is nowhere near being in operation in most EU states.
So the question has to be asked: does this mean that all telecommunications have not been under surveillance since 11 September? Of course they have, not by the law enforcement agencies but by the security and intelligence agencies. The National Security Agency (USA) and the Government Communications Headquarters (GCHQ, UK) have been surveilling global communications since 1947 (UKUSA agreement). During the Cold War this was for military and political purposes, later through the new Echelon system political and economic intelligence was targeted. Echelon, NSA and GCHQ were already moving to cover terrorism (and associated serious crime) before 11 September - after it became a new priority. But even then, for example, with the new, huge, NSA online storage system (Petraplex) designed to hold all the world's communications for 90 days, this is almost useless unless the agencies know (through gathering human intelligence on the ground, HUMINT) what to look for.
The EU's law enforcement agencies’ demand for data retention, now backed by their governments, has little or nothing to do with terrorism but rather is primarily to deal with crime and internal threats posed by public order, refugees and asy