Data retention news

By EDRi · April 20, 2005

On Wednesday 13 April the Dutch news agency ANP broke the news that the
European Council of Justice and Home Affairs had definitely withdrawn the
data retention proposal from their schedule and would wait for a proper
1st pillar proposal from the European Commission, following devastating
legal advice from both the Commission as well as the internal legal
service. Thanks to the civil rights organisation Statewatch the two
documents (in French only) had been leaked to the public on 10 April 2005.
Both texts suggest that the Council is wrong in assuming it can create
mandatory data retention in the third pillar (criminal law and policing).
The proposal will have such a major impact on the internal market and the
existing e-privacy directive of 2002 that only the Commission, with full
co-decision rights of the European Parliament, is allowed to propose

ANP also suggested the Commission’ proposal wouldn’t be ready before
September 2005, thus seriously delaying the Council scheme of introducing
a framework decision on data retention by the 1st of June 2005. EDRI could
not get any confirmation of this news. The day before ANP brought the
news, during an intensive debate with the legal affairs committee of the
Dutch Lower House about the draft framework decision, Justice Minister
Donner completely denied the importance of the two documents. The Council
would just continue its work, and if the Commission would come up with a
proposal it would be early enough for the Council to take a position on
the legalities. A majority of MPs wanted much more proof of the necessity
and especially effectivity of data retention, before they could agree with
any further steps in the JHA Council. Donner said he would send another
letter to the Lower House explaining his position on the necessary data
and required powers for international collaboration. He also promised that
the results of a new investigation into the need and necessity of data
retention would become publicly available and discussed in Parliament
before the Netherlands would agree to any JHA vote on the issue. Donner
commissioned the report in February 2005 to the criminal law faculty of
the Erasmus University of Rotterdam. According to the minister, the
discussion was removed from the JHA schedule of 14 April “because there
was still too much difference in opinion on the kind of data to be

On 15 April the German e-zine Heise got a similar quote from a
spokesperson of the Council about the irrelevance of the legal advices.
The Working Party on Cooperation in Criminal Matters (high level
officials) would just continue to work on the details of the framework
this week. To underline their determination, on 15 April the Council
published a new proposal made by Lithuania on the content of communication
data to the working group. The Lithuanians suggest that the police
definitely needs access to massive databases with all imaginable
telecommunication protocols, as well as username, password, PIN and PUK

Heise also quotes a furious Alexander Alvaro, the EP rapporteur on the
proposal (in a purely consultative role). Alvaro was outraged at a speech
by the Luxembourg Justice minister Luc Frieden, who told the European
Parliament that it was unnecessary to debate the legal approach if all
parties agreed on the same goal. Apparently, the Council still expects a
hardcore data retention proposal from the Commission to appear early in
June 2005.

EU: Data Retention proposal partly illegal, say Council and Commission lawyers (10.04.2005)

Heise: Weiter Zoff um EU-Pläne zur Speicherung von TK-Verbindungsdaten (15.04.2005)

Lithuanian proposal on the content of communication data (published 15.04.2005)