Blanket data retention has been prohibited in several court decisions by the European Court of Justice (ECJ) and the German Federal Constitutional Court (BVerfG). In spite of this, some of the EU Member States want to reintroduce it for the use by law enforcement authorities – through a back door in the ePrivacy Regulation.
The ePrivacy Regulation
The ePrivacy Regulation, which is currently under negotiation, is aimed at ensuring privacy and confidentiality of communications in the electronic communications, by complementing and particularising the matters covered in the General Data Protection Regulation (GDPR). Confidentiality of communications is currently covered by the ePrivacy Directive dating back to 2002. A review of this piece of legislation is long overdue, but Member States keep delaying the process and therefore not updating necessary protections for online privacy in the EU.
Ever since 2017, the EU Ministers of Justice and Interior have been “deliberating” the Tele2 verdict by the European Court of Justice. The Court had declared the blanket retention of telecommunications metadata inadmissible. Yet the EU Member States are unwilling to accept this ruling. During an informal discussion in Valetta on 26 and 27 January 2017, the Justice and Interior Ministers expressed their wish for “a common reflection process at EU level on data retention in light of the recent judgments of the Court of Justice of the European Union” (Ref. EU Council 6713/17) to implement EU-wide data retention. This process was set in motion in March 2019 by the Presidency of the Council of the European Union. A sub-group of the Council’s Working Party on Information Exchange and Data Protection (DAPIX) was put in charge. From the very beginning, this reflection process has mainly served the purpose of finding opportunities to implement yet another instance of data retention on the EU level. This has been proven by documents published by EDRi member Statewatch.
Instead of complying with the clear rulings by the European Court of Justice (Tele 2 and Digital Rights Ireland), the responsible ministers are doing everything they can to “resurrect” data retention, potentially using ePrivacy as a basis for a new era of data retention. In a working document (WK 11127/17), the Presidency of the EU Council in 2017 concluded in addition to a specific data retention legislation it would be desirable to also collect citizens’ communications data (metadata) in ePrivacy to avoid so companies can use it for commercial purposes. The logic behind being, probably, to circumvent CJEU case law by not imposing an obligation on companies but having the data available when law enforcement needs it thanks to ePrivacy.
Private data retention
In plain words, this means: If the courts will not allow mass data retention, service providers will simply be given incentives to do so by their own choice. That is why the ePrivacy Regulation is being watered down by Member States in order to give the service providers manifold permissions to store data for a wide variety of reasons (see Article 6 of the draft ePrivacy Regulation). Those responsible are relying on the assumption that the providers’ appetite for data will be sufficient even without an explicit obligation to retain data.
The immediate problem with this type of private data retention is the fact that it weakens the protection of all users’ personal data against data hungry corporations whose main interest is making profit. What’s even worse is that, once again, a governmental function is being outsourced to private corporations. These corporations are not subject to democratic scrutiny, and they are given ever more power over the countries concerned.
In Germany, the hurdles for criminal investigators to get access to data are already very low. The e-mail provider Posteo, for example, had to pay a fine because they were unable to provide the criminal investigators the IP addresses from which a certain e-mail account had been accessed. Posteo simply hadn’t stored those data; they were erased as soon as they were received. The Court declared the fine to be justified. This decision could easily lead to a situation where private companies prefer to err on the side of caution and store even more data, just to avoid such fines.
The draft ePrivacy Regulation as proposed by the European Commission in 2017 placed relatively strict duties on service providers regarding data protection. For example, they were obliged to either erase or anonymise all data that was no longer needed. This is diametrically opposed to the goal of private data retention, and the DAPIX task force noticed it, too. As the Presidency of the EU Council statedservice providers will be given the freedom to use and store data in order to prevent “fraudulent use or abuse”. And these data could then be picked up by law enforcement doing criminal investigation.
No data retention through the back door!
EDRi member Digitalcourage wanted to know how the German government argued with respect to the data retention issue, and submitted a request for the disclosure of documents related to it. Unfortunately, the request was largely denied by the Council of the European Union, long after the legal deadline was missed. The secretariat declared that a disclosure would be a threat to public safety – the risk to the relationship of trust between the Member States and Eurojust, the EU agency dealing with judicial co-operation in criminal matters among agencies of the Member States, would be too severe. Furthermore, such a disclosure would threaten ongoing criminal investigation or judicial procedures. No further details were given. Digitalcourage lodged an appeal against this dismissal, but in addition to being asked for patience, they haven’t received an answer from the European Commission. Several requests pursuant to the Freedom of Information Act have also been submitted to German ministries.
It is unbelievable to imagine policy makers contemplating existing and potential new surveillance laws that would clearly be illegal. However, this is exacly what the DAPIX task force is doing, and they are doing it behind closed doors. The changes they propose can be found in the current draft ePrivacy Regulation. Digitalcourage will continue to request documents from the EU and the German government. As soon as the trilogue negotiations between EU Council, Commission and Parliament begin, the concerns will be voiced our concerns and a demand: No data retention through the back door!
This article was first published at https://digitalcourage.de/blog/2019/eprivacy-private-data-retention-through-the-back-door
ePrivacy: Private data retention through the back door (in German, 18.04.2019)
(Contribution by EDRi member Digitalcourage, Germany)