NL: Lower House hearing on data retention

By EDRi · October 5, 2005

On 28 September 2005 the Dutch Lower House commission on judicial affairs organised a public hearing about data retention, preceding the official debate on the need and usefulness of data retention on 5 October 2005. The commission invited two representatives from law enforcement, one from the telecom and internet world each as well as EDRI-member Bits of Freedom and the national data protection authority.

The MPs asked questions about the need and usefulness of data retention, and wanted to know if the measure was really necessary to fight crime or if less invasive measures could also be adequate, for example data preservation (of individual suspects). Two days before this hearing, the Lower House adopted the law on Computer Criminality II, translating the Cybercrime treaty and adding this quick freeze of data to the extensive Dutch arsenal of law enforcement powers.

The law enforcement representatives mentioned examples from the past to demonstrate that traffic data have been used successfully in major cases such as the investigation into the Hells Angels and a Chinese gang trafficking in human beings. Similar to the 65 cases described in the Erasmus report, the police had access to all the required data at the telecom providers, gravely undermining their call for mandatory data retention. Public prosecution officer Taco Stein admitted he could never prove any investigation would fail because of lacking traffic data.

Bits of Freedom (also speaking on behalf of the national Consumer Union) addressed the lack of effectiveness. “We can only spend the security euro once.” BOF also examined the UK Presidency paper on the necessity of data retention in detail, explaining that in 3 of the 4 mentioned examples all the required data were available, given the fact the investigation into these cases of kidnapping and threats started within a few days.

The chairman of the Dutch DPA, Jacob Kohnstamm, said “It was an unprecedented step to record data about all citizens preventively, for the sake of law enforcement.” He also said no proof was given of the added value of mandatory data retention. But when questioned by a Christian Democrat MP to what minimum list he could agree, in the end he provided the MPs with a list of 5 strong demands, regarding access, security and cost requirements. He said he was concerned about the proposal to store all the telecom traffic data in one central government controlled location, especially if there was no cost barrier preventing law enforcement from overusing the database.

The representative from the telecom industry, speaking on behalf of all 5 mobile operators, said he also failed to see any proof for the usefulness of data retention, but could agree to data retention if it was limited to data already stored by the industry.

During a 2 hour debate on the need and usefulness of data retention with Minister Donner today, the MPs remained opposed to the framework decision. A majority seemed satisfied with the Commission proposal, except for the open-ended Comitology procedure. Minister Donner defended the proportionality of storing internet data for 6 months by saying they were just as useful as telephony data, but given the high costs, it was more proportional to keep them shorter. But, he added, “once we have started with 6 months, and the data prove to be useful, we can easily extend that period to 1 year as well.”

On 11 October both Houses of Parliament will discuss the agenda of the JHA Council on 12 October. Minister Donner admitted he had no chance at all of getting both houses to agree with the framework decision, but refused to ask his colleagues to withdraw the proposal and properly wait for the European Commission and Parliament to agree on the directive.