Dutch Government on data retention

This article is also available in:
Deutsch: [Die Niederländische Regierung und die Vorratsdatenspeicherung | http://www.unwatched.org/node/1377]

The answers of the Dutch Government to the additional set of questions sent
by the Dutch Senate about the implementation of the Data Retention Directive
reveal some interesting opinions. At the end of 2008 the Dutch Senate held a
hearing with technical experts and a plenary debate about the implementation
proposal later is expected this Spring.

The Dutch Government sees the current proposal for data retention as being
of a limited nature. It already points to a possible extension of data
retention at the European level, in particular a drastic extension of data
retention obligations with regard to online communications, as well as its
term.

Also the Government downplays the interference with fundamental rights:
“The risk of the interference with the private life of data subjects
consists primarily of the image that these data provide of communicative
behavior. On that point, there is little difference with the specified bills
that telecom providers offer as an extra service. In addition, there is a
risk of linking the data to criminal activity of persons. However, a similar
risk is also present in the context of requests for license plate
information by the police. The Criminal Procedural Code stipulates strict
conditions for the access to data by law enforcement officials. The above
does not alter the fact that subjects have a right that the data about their
communications are being processed with exceptional care.”

No responsibility is taken by the Dutch government to legitimate the
interference with fundamental rights but points towards the European
legislature: “With regard to the necessity of the interference in a
democratic society, there is a margin of appreciation for the member states.
The data retention obligation, however, follows from a European directive
and the (Dutch) data retention term falls within the limitations of the
Directive.”

At the same time, the government endorses the judgement of the ECJ and gives
the primary argument why the Court should have struck it down. The
government states explicitly why differences between data retention
obligations between the member states cannot harm the competitiveness within
the internal market. There is still a level playing field. The negative
effects on the internal market were the reason why the directive was legally
adopted (in the ECJ’s eyes).

Another interpretation of the data retention directive is given in a recent
answer from the European Commission to a question asked by MEP Alexander
Alvaro which shows that the data retention directive does not cover services
provided free of charge. The answer points to the wording of Article 50 of
the Treaty establishing the European Community that “does not require that
the remuneration for the service is charged to the user or
subscriber of the service; it covers also cases where remuneration is paid
by a third party. The definition covers in particular services of a
commercial character. On the other hand, an activity which is not of an
economic or commercial character itself or linked to such an activity does
not constitute a service in the meaning of the Treaty” and thus is not
subject to the directive provisions.

Dutch Government already thinks about extending data retention at European
level (14.04.2009)
http://www.jorisvanhoboken.nl/?p=269

Answers from the Dutch Government (only in Dutch, 9.04.2009)
http://www.eerstekamer.nl/behandeling/20090409/nadere_memorie_van_antwoord

Written question by Alexander Alvaro (ALDE) to the Commission: Subject:
Services provided free of charge in the context of data retention
(18.02.2009)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2009-0969+0+DOC+XML+V0//EN

E-0969/09EN – Answer given by Mr Barrot on behalf of the Commission
(16.04.2009)
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2009-0969&language=EN

(Thanks to EDRi-member Joris van Hoboken – Netherlands)