Data Retention Directive evaluation: expect the unexpected?

By EDRi · December 15, 2010

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Deutsch: [Evaluierung der Vorratsdatenspeicherung: Das Unerwartete erwarten? |]

The evaluation of the controversial Data Retention Directive takes an
unexpected turn, for the worse. At a crucial one-day conference in Brussels
on 3 December 2010, aimed at gathering input for the evaluation, long-term
critic of the Directive Commissioner Malmström (DG Home Affairs)
surprisingly announced that “data retention is here to stay”.

The statement not only disregards legal developments since 2005, the
damage done by telecommunications data retention to 500 million
Europeans and the lack of evidence that such a measure is necessary and
proportionate. On top of that, the Commissioner undermines the entire
evaluation process and the evidence-based decision making itself. To great
risk, because our fundamental freedoms and the very nature of our free
and open societies is at stake.

Nevertheless, the unexpected statements of the Commissioner could turn out
to be momentary. Each member of the Commission swore, for the first time in
history, a legally binding oath before the European Court of Justice to
respect the Fundamental Rights Charter on 3 May of this year. In 2011, the
same European Court of Justice will rule on the constitutionality of the
principle of data retention, after a referral of this question by the Irish
High Court. The Commission might realize in time that it will lose its
credibility, once the Court – taking note of the ECJ Schecke (§86) and ECtHR
Marper (§119-125) judgements – rules data retention in breach of our
fundamental rights to privacy. Better stand up for the rights of 500 million
citizens now, than feeling sorry afterwards.

“We shouldn’t put the privacy of all citizens at risk”, Commissioner Reding
(Justice, Fundamental Rights and Citizenship) told Dutch newspaper NRC
Handelsblad recently. So the Commission is divided on this controversial
issue. In the evaluation report, to be published in the first quarter of
2011, the entire Commission will have its say. Is data retention here to
stay? We might as well expect the unexpected.

Entire report of the conference “Taking on the Data Retention Directive”

EDRi’s keynote lecture at the conference “What does the European
Commission owe 500 million Europeans?” (3.12.2010)

Cecilia Malmström Member of the European Commission responsible for Home
Affairs Taking on the Data Retention Directive European Commission
conference in Brussels (3.12.2010)

(Contribution by Axel Arnbak – EDRi-member Bits of Freedom – Netherlands)