ENDitorial: Member States turn a drama into a crisis for Commissioner Malmström on data retention

By EDRi · February 29, 2012

This article is also available in:
Deutsch: [ENDitorial: Mitgliedsstaaten stürzen Kommissarin Malmström in Sachen Vorratsdatenspeicherung in die Krise | https://www.unwatched.org/EDRigram_10.4_ENDitorial?pk_campaign=edri&pk_kwd=20120229]

Soon after the current college of Commissioners took office in 2009, all 27
Members travelled to Luxemburg to take a solemn oath to respect the Charter
of Fundamental Rights in all of their duties. One key element of the Charter
is that any restriction on fundamental rights must be “necessary and
genuinely” achieve objectives of general interest or the defence of rights
and freedoms of others. Commissioner Malmström thereby undertook a personal
legal obligation to ensure that any measures promoted or defended by her
services were both necessary and effective.

One of the most controversial issues under the Commissioner’s control is the
Data Retention Directive. The Commissioner’s services were legally obliged
to issue an implementation report by September 2010. As a result, the
Commissioner went personally to a Council of Ministers meeting and asked the
Member States on 15 July 2010 for the “necessary” information for completion
of the evaluation report. Subsequently, having not received adequate
information from the Member States, she sent another letter to them on 27
July 2010 to ask again for the data.

Due to the failures of the Member States to respect their obligations under
Article 10 of the Directive to provide detailed statistics to the
Commission, it could not, in turn, respect its obligation to provide an
evaluation report by 15 September 2010. In the end, the Commission was
forced to adopt its report over half a year late and with inadequate data.
However, even to a neutral observer, it was obvious from the European
Commission’s report that the Directive suffers from severe shortcomings and
needs to be at least reformed, and most probably repealed. The report was so
full or shortcomings that EDRi felt obliged to produce a “shadow report” in
order to highlight its failures.

The lack of data from the Member States has driven the Commission into the
worst possible position, with no hope of support from Member States to
repeal the Directive, no hope of data from the Member States to prove that
data retention is necessary (because no such data appear to exist) and no
legally defensible possibility to maintain the Directive as it is. As a
result Commissioner Malmström has been forced to send yet another letter to
national Justice and Home Affairs Ministers to plead for useable data –
charitably and possibly desperately suggesting that “many Member States
appear to be unsure as to what specific quantitative and qualitative
evidence to be provide so as best to assist the Commission’s work.”

The letter sent by the Commissioner on 3 February 2012 reflects many of the
points raised by EDRi in its discussions with the Commission, in its letter
and shadow evaluation report. In particular, the letter requests feedback
from Member States that have not implemented the Directive as to whether the
absence of data retention affects the effectiveness and efficiency of
criminal investigations and prosecutions. Unfortunately, the letter
vacillates between talking about “data retained under the Directive” and
“retained data”. For example, in the section of the letter on “quantitative
evidence” the explanatory text talks about “data retained under the
Directive” (i.e. data that would not otherwise have been stored) and the
specific questions asked to the Member States asks about “retained data”
(i.e. data that would have been stored by the communications provider in any
event as well as data retained under the Directive).

The time has come for the Member States to either provide the data to prove
their claim that the Data Retention Directive or for the Commissioner to
take the only legal option available to her, to stand up to the Member
States and the repeal of the Directive.

Commissioners’ letters

EDRi-gram: EDRi and 37 NGOs send letter to European Commission on data
retention (5.10.2011)

Commission evaluation report (18.04.2011)

EDRi shadow evaluation report (17.04.2011)

(contribution by Joe McNamee – EDRi)