EP rejects data retention proposal

By EDRi · June 15, 2005

By massive raise of hands on 7 June 2005 the European Parliament adopted the very critical report of Alexander Alvaro on the proposal for mandatory data retention. The European Parliament thus sent a clear signal to the Council of Justice and Home Affairs ministers that they completely reject the current approach in the third pillar. Under this procedure, the European Parliament only has an advisory role, but no power to amend or reject a proposal. The JHA Council immediately responded in the EP that they would not withdraw the draft framework decision but continue to work on it.

According to the report about the meeting of the JHA Council the ministers reached agreement on mandatory data retention, in principle for 1 year for all kinds of data, both for data that are already processed as well as for data that are only generated but never used by providers, for the purpose of investigation, detection and prosecution of all kinds of criminal offences.

Secondly, the ministers agreed to give the internet industry some extra time to implement the decision, if some countries would think that was necessary. The ministers announced this as a successful compromise, but in reality they only agreed to a delay, without any possibility of not introducing data retention for internet service providers if it turns out that the demand is technically or financially impossible or ineffective or disproportionate.

Thirdly, the ministers agreed to ignore all the protests about the legal basis of the framework decision. They decided that they could continue their work in the third pillar to create mandatory data retention, but would leave the exact details of data definitions and retention periods to the European Commission.

The ministers announced they will continue to discuss the minimum list of data and retention period in the next informal JHA Council, on 8 September 2005, under the UK presidency of the EU. This approach puts the European Commission under extreme pressure to produce a suitable proposal for a first pillar directive about the kinds of data and the time periods. The proposal is now expected to surface in July 2005, during the summer recess of the European Parliament.

The European Commission will have to take both costs for the industry and human rights in general into account, when creating a proposal. Commissioner Viviane Reding announced in response to the agreement in the JHA Council that the Commission would conduct an impact-analysis. When it comes to human rights, on 27 April Commission President Barroso announced that all new directives would have to be examined on their compatibility with the Human Rights Charter. For every legislative process there will have to be an impact assessment on the effect of legislation on individual rights and an examination of the legal reasoning for legislation – with an assessment of its effects on fundamental human rights.

There is still not a single bit of evidence about the pressing social need in a democratic society to introduce the planned immense warehouses with intimate details about the social networks, reading interests and whereabouts of every innocent EU citizen. Hopefully the new Commissioners Group on Fundamental Rights, Anti-discrimination and Equal Opportunities will take this lack of proof, so essential under article 8 of the ECHR, into account before they accept a directive proposal.

Before the EP vote on 7 June 2005, EDRI sent an open letter to the presidents of the political groups in the EP asking them to support of the report of Alexander Alvaro. The letter was translated in French, German, Spanish and Finnish and sent to many individual MEPs. EDRI was informed by a large association of US telecommunication providers, CompTel/ALTS that they share all the concerns about the proposal, especially about the so-called 2-step approach. In a letter to the Commissioners Reding and Frattini and to the Luxembourg presidency they write: “CompTel/ALTS believes that the best solution is that there be no mandatory retention period at all” and “Retention obligations should be based upon demonstrable law enforcement needs and grounded in the experience gained to date in co-operating with the communications industry.” On the issue of costs, CompTel explains: “The investment costs alone will be in the hundreds of millions of euros, and annual operating costs could reach tens of millions of euros, the lowest estimates. If, as foreseen by the EU Proposal, the carriers and ISPs need to pay out of their own pockets for storing and providing the data, law enforcement agencies and prosecutors will shop around to obtain ‘free’ traffic data;(…)”

The providers of fixed and mobile telephony in Europe have been remarkably quiet about the proposal so far. The massive resistance of the internet industry might have lulled them into thinking the proposal would be rejected without their help.

EDRI, PI and Statewatch open letter to the EP (06.06.2005)

Letter CompTel/ALTS to the European Commission (03.06.2005)

JHA Council conclusions (in French, 02.06.2005)

Luxemburg press release: Agreement on a policy for the retention of telecommunications data (02.06.2005)

President Barroso proposes a new framework to ‘lock-in’ a culture of fundamental rights in EU legislation (27.04.2005)