Austria: BIM delivers draft act on implementing Data Retention Directive

By EDRi · December 2, 2009

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Deutsch: [Österreich: BIM liefert Gesetzesentwurf zur Implementierung der Vorratsdatenspeicherungs-Richtlinie|]

In April 2009 – after the EU Commission decided to bring an action against
Austria because of non-transposition of the Data Retention Directive
2006/24/EC (DRD) – the Ludwig Boltzmann Institute of Human Rights (BIM) was
assigned by the Austrian Federal Ministry for Transport, Innovation and
Technology to elaborate a draft act on the amendment to the
Telecommunications Act 2003, in order to find a way of transposition that
interferes least with fundamental rights of users. Although Austria had
supported the Directive in 2006, the newly elected government has delayed
the transposition not least because of serious doubts about its conformity
with Art. 8 European Convention on Human Rights (ECHR), which provides a
right to respect for one’s “private and family life, his home and his

After we had been invited by the Ministry to elaborate such a draft act, we
thought very seriously for a while, if we should accept and what the
consequences would be. In the past years the BIM had criticised the DRD
fundamentally in public and we had published studies on the Directive in the
light of the ECHR which brought the result, that Data Retention is
incompatible with the Human Rights provisions. So the main problem was (and
still is), if a Human Rights Institute of high reputation writes the draft
for transposing the directive, the act likely will get the “fundamental
rights proofed”- stamp, what would clearly undermine the criticism on the
issue in public perception. On the other hand the Austrian Government left
no doubt that it is going to transpose the Data Retention, in order to avoid
a conviction through the European Court of Justice (ECJ) and the assignment
could be the chance to find a version of transposition which provides as
much safety elements as possible. But this would not have been enough to
decide for this job. The aim was to show in a accompanying scientific
analyse, that it is not possible to “repair” the DRD by creating safeguards
and transposing just the minimum necessary under Community Law – which of
course we did. Even so the Data Retention causes a violation of Art 8 and 10
ECHR, so the BIM recommends, that those parts of the draft act, which
stipulate the retention of data, should never enter into force – otherwise
their mere existence would violate Human Rights!

The BIM organised continuous round table discussions with concerned service
providers, non-profit organisations, employee and consumer representations,
as well as representatives of concerned ministries and other public
authorities. In addition, meetings in small technical groups were held in
order to assure clarity of the norm and to take into consideration all
technical possibilities, especially concerning data security matters. On 11
September 2009 – almost ironic – the Ludwig Boltzmann Institute of Human
Rights delivered the draft act on the amendment to the Telecommunications
Act 2003. Presently it is announced for an official public examination. This
hopefully perpetuates a public discussion about the non existing necessity
of this instrument.

Ceterum censeo data-retentionem esse delendam!

Draft Law on data retention suggested by the BIM (only in German)

Data retention opponents making their move (only in German, 26.11.2009)

AK Vorrat Austria

Resistance against Data Retention in Austria (only in German, 1.12.2009)

(Contribution by Christof Tschohl – Legal Researcher at the BIM and the main
author of the BIM-contribution to the Austrian DR draft law)