Data retention: EU Commission – guardian and enemy of the treaties
The new European Commissioner for Home Affairs plans to re-introduce new measures for the retention of telecommunications data, according to a report by German digital rights blog Netzpolitik.org. A spokesperson of the Commissioner for Home Affairs is quoted as saying that there was no longer doubt “if” there will be a directive, the only question is “how”.
According to Netzpolitik.org, Dimitris Avramopoulos, the European Commissioner for Migration, Home Affairs and Citizenship, wants to announce a new proposal for mass surveillance of digital communication in mid-2015. A spokesperson of the Commissioner of Home Affairs (HOME) reportedly confirmed to netzpolitik.org: “The issues raised by the Court are very complex and require careful assessment of their impacts. The Commission is currently undertaking such an assessment, involving the relevant constituencies such as law enforcement and data protection authorities.” When asked if this meant that DG Home was still assessing if there should be a new Directive, the spokesperson replied: “No, we are now reflecting on the how, rather than the if.”
These news are rather surprising since the European Court of Justice overturned the Data Retention Directive in April 2014 and declared its suspicionless mass surveillance measures to be disproportionate and in violation of fundamental rights.
In July 2014, a study by two law professors showed that the European Court of Justice “has delivered a key judgement” with “major consequences” as the “general and undifferentiated nature of data retention measures” represents a serious violation of fundamental rights. An important report from the commissioner for human rights at the Council of Europe, entitled “The Rule of Law on the Internet in the Wider Digital World” comes to the same conclusion: “Suspicionless mass retention of communications data is fundamentally contrary to the rule of law, incompatible with core data-protection principles and ineffective. Member states should not resort to it or impose compulsory retention of data by third parties.”
Shortly after the publication of the report regarding the Commission’s plans, Netzpolitik.org received a second email in which DG HOME backpedalled and stated that they still carefully consider the “if”. Two things are certain: The Commission is currently evaluating the consequences of the Court ruling while Interior Ministers of the 28 Member States are urging the new Home Commissioner to propose a new Directive.
Meanwhile, it is obvious that several EU countries are in breach of their obligations under EU law with regard to their data retention measures. The Commission has made no efforts whatsoever to uphold EU law with regard to this illegal behaviour.
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Telecommunications Data Retention: EU Commission is working on new Data Retention Directive (10.12.2014): https://netzpolitik.org/2014/suspicionless-mass-surveillance-eu-commission-is-working-on-a-new-data-retention-directive/
EDRi: European Court overturns EU mass surveillance law (8.4.2014): https://edri.org/european-court-overturns-eu-mass-surveillance-law/
Prof. Dr. Franziska Boehm and Prof. Dr. Mark D. Cole: Data Retention after the Judgement of the Court of Justice of the European Union (30.6.2014) http://www.greens-efa.eu/fileadmin/dam/Documents/Studies/Data/Boehm_Cole_-_Data_Retention_Study_-_June_2014.pdf
The rule of law on the Internet and in the wider digital word (8.12.2014): https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2654047&SecMode=1&DocId=2216804&Usage=2