Data retention – time for evidence-based decision making

By EDRi · June 30, 2010

This article is also available in:
Deutsch: [Vorratsdatenspeicherung – Zeit für evidenzbasierte Entscheidungen |]

In June 2010 the European Parliament adopted a farcical “written
declaration” ostensibly on the creation of an “early warning system” to
fight pedophiles. Funded by unknown sources, the MEPs in charge (Zaborska
from the Czech Republic and Motti from Italy) put together the Declaration
in order to promote the retention of communications data and the extension
of this practice to “search engines”.

After tabling the declaration, a highly polished, American-style lobby
campaign went into operation. The lobbying neatly avoided mentioning data
retention in any of the associated printed materials, in any of the e-mails
sent to MEPs and on the campaign’s website.

The MEPs involved and their staff harangued and harassed parliamentarians,
even to the point of putting lobbying material on their desks in the
Parliament’s hemicycle itself – with the simple message of “sign to fight
sexual harassment” using a picture of a vulnerable-looking child. Mainly as
a result of the large number of parliamentarians that signed due to
mistakenly trusting what they were told about the content of the
declaration, it was adopted.

The Declaration has now been sent to the European Commission, where Cecillia
Malmström, who vehemently opposed the Data Retention Directive in her
previous job as a Member of the European Parliament, needs to decide how to
respond. Having indicated in the Swedish press that such an approach would
be disproportionate, there are reasons to be hopeful that her position will
be firm and favourable to citizens’ rights. To make Commissioner Malmstrom’s
task even easier, she took an oath in May of this year to respect the
Charter of Fundamental Rights of the European Union.

Unequivocal opposition to such extreme proposals is important, particularly
at the moment. By the end of this week, the relevant Directorate-General of
the Commission will have completed its first draft assessment of the Data
Retention Directive, which will then be reviewed by the Commissioner. This
will then be followed by a second round of drafting, consultation with the
other parts of the Commission and adoption of the final report, probably in
the second half of September. In the absence of evidence to suggest that
data retention has served any useful purpose, it is to be hoped that the
Commissioner will maintain her opposition to the Directive and propose
appropriate and ambitious amendments, removing obligations on all Member
States to impose long-term blanket data retention on all citizens.

This process is all the more important as a result of developments in the
Council of Europe, which will soon adopt its Recommendation on Profiling.
The current and almost final version of that text lends credibility to
Member States that wish to exploit retained data to assign “profiles” to
innocent citizens. The Recommendation exempts Member States from having to
apply three important chapters: on lawfulness, data quality and sensitive
data. In 2008, a report prepared for the Council of Europe pointed out that
registration of internet users is “likely to have a chilling effect not just
on journalists but on any users that wish to access public or legal, but
controversial materials.” The implementation of profiling would make this
serious chilling effect seem minor in comparison.

Campaigning against the Data Retention Directive is already in full swing.
More than 100 organisations (including EDRi) from 23 European countries
asked last week EU Commissioners Malmström, Reding and Kroes in a joint
letter to “propose the repeal of the EU requirements regarding data
retention in favour of a system of expedited preservation and targeted
collection of traffic data”. Among the signatories are civil liberties, data
protection and human rights associations as well as crisis line and
emergency call operators, professional associations of journalists, jurists
and doctors, trade unions, consumer organisations and industry associations.

Study undertaken for the Council of Europe on the effects of anti-terror
legislation (11.2008)

Written declaration 29 website

Oath sworn by Commissioners (3.05.2010)

Draft Council of Europe Recommendation on profiling (3.06.2010)

Data retention Directive

Malmstrom says no to Google Storage (only in Swedish, 28.06.2010)

Letter to Commissioner (22.06.2010)

Civil society calls for an end to compulsory telecommunications data
retention (28.06.2010),en/

(Contribution by Joe McNamee – EDRi)