Data retention regime in discussion all over Europe

By EDRi · November 17, 2010

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Deutsch: [Diskussion der Vorratsdatenspeicherung quer durch Europa |]

While in Germany the Minister of Justice rejects the current data retention
regime, Sweden is preparing to implement it. In the meantime, the European
Commission is organizing a public debate on the review of the directive, but
has delayed its final report on the revision.

The Swedish Government has proposed a draft law to implement the data
retention directive, asking for a six month period of keeping the
trafficdata of electronic communications. Justice Minister Beatrice Ask
considers that it is “important for us to create adequate protection for
personal integrity” and this is why Sweden has opted for the minimum period
allowed by the EU directive.

The European Commission (EC) has already started the review of the data
retention directive, but decided to postpone the report after it failed to
obtain from member countries enough evidence to show why the directive is
needed. “The data retention directive is a totally failed initiative,”
EDRi’s Joe McNamee told Deutsche Welle. Now the EC has invited all relevant
stakeholders to a conference in Brussels on 3 December 2010 in order to
“finalise the evaluation of the Directive and to start the process of its

In Germany, the head of the Federal Criminal Police considers that its
country should re-enact the data retention law. But the German Minister of
Justice Sabine Leutheusser-Schnarrenberger has supported the position of the
civil society which is against such a measure. Moreover, she has informed
the German Working Group on Data Retention (AK Vorrat) that she supports
their position that if the EU Commission wants to uphold the data retention
policy entirely, the EU must at least leave it to national parliaments and
constitutional courts to decide whether they wish to implement this policy
or not. “I am permanently in touch with the EU Commission and will take your
arguments into account in our upcoming discussions”,
Leutheusser-Schnarrenberger assured the Working Group.

The AK Vorrat press info also points to the recent ruling of the European
Court of Justice that considered “limitations in relation to the protection
of personal data must apply only in so far as is strictly necessary”. It
ruled as “invalid” EU requirements to publish every recipient of
agricultural subsidies in the EU, deciding that this indiscriminate policy
“exceeded the limits which compliance with the principle of proportionality
imposes”. “(I)t is possible to envisage measures which affect less adversely
that fundamental right of natural persons and which still contribute
effectively to the objectives of the European Union rules in question”, the
Court held.

“The EU must now also abandon the disproportionate practise of
indiscriminate retention of records on any communication, lest the
EU Court of Justice rule the EU data retention directive invalid,
too”, comments Patrick Breyer of the Working Group on Data
Retention. “The targeted preservation of suspect data is much less
invasive and still contributes effectively to the prosecution of
crime. The practise of most states world-wide demonstrates that EU
rules stipulating the indiscriminate retention of records on any
phone call, mobile phone location and Internet connection in the EU
is not ‘strictly necessary’, but violates our right to respect for
our private lives as guaranteed in the EU Charter of Fundamental
Rights. It is not only the EU Court of Justice but also national
constitutional courts and the European Court of Human Rights
that have in the past ruled invalid indiscriminate intrusions into
the personal lives of innocent citizens.”

Six EU member states have refused to transpose the controversial 2006 EU
data retention directive; in two more EU Member States constitutional courts
have annulled data retention laws, finding them incompatible with
fundamental rights.

The Canadian Government also distanced itself from the
controversial EU data retention policy. It announced plans to
“create a preservation order that would require a telecommunication
service provider to safeguard and not delete its data related to a
specific communication or a subscriber when police believe the data
will assist in an investigation.” “This is not data retention”, the
Department of Justice pointed out. Preservation orders would be
“restricted to the data that would assist in a specific

German Minister wants to end EU-wide communications data retention

Conference “Taking on Data retention” – 3 December 2010

Sweden falls in line with controversial EU data retention rules (12.11.2010),,6223369,00.html

European Court of Justice cases C-92/09 and C-93/09 (9.11.2010)

Canada Backgrounder : Investigative Powers for the 21st Century Act