Update on the Belgian transposition of the Data Retention Directive

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Deutsch: [Belgien: Neues zur Umsetzung der Vorratsdatenspeicherung | http://www.unwatched.org/node/1702]

The transposition of the Data Retention Directive in Belgium has remained
stagnant for a long time. Following a public consultation in May 2008 on a
first draft law proposal and draft royal decree to transpose this Directive
into Belgian law, a broad group of organisations voiced a strong position
against the Data Retention Directive and the way in which the Belgian
government wanted to transpose this into the national law.

Not only did the government choose for a maximal transposition (e.g. a
retention period of 24 months), but the Belgian government also chose to
extend the data retention scheme provided by the European Directive
(e.g. demanding more data to be retained, such as banking data, and allowing
access and use of these data beyond ‘serious’ crime). Even the Belgian Data
Protection Authority (DPA) delivered at that time, and for the first time
ever, a completely negative advice on the draft law proposal and royal
decree.

Together with the public campaign on the website bewaarjeprivacy.be, all the
above had an impact on some political parties taking part in the federal
government, especially the French speaking ones, which made it hard – given
the more general mistrust in the Belgian federal government between Dutch
speaking and French speaking parties – to find a political agreement on the
matter and for the responsible cabinets to proceed without adjustments.

Behind the scenes, the responsible cabinets continued negotiating with
representatives from telecom operators, internet service providers and law
enforcement agencies. In close cooperation with law enforcement agencies,
especially the Federal Computer Crime Unit, the responsible cabinets also
presented a rather extensive document to the Belgian DPA in response to
their prior negative advice to justify a maximal transposition. The document
made some minor changes based on some of the remarks made following the
public consultation in May 2008, but did not address the more fundamental
issues. In general, the draft law proposal and royal
decree remained the same and the justification for this set out in the annex
was insufficient because of the arbitrary and incomplete nature of the
evidence presented.

Nevertheless, the Belgian DPA changed its advice from negative on the whole
to positive provided that some changes were made (e.g.
a retention period of 12 months; a restriction of the data retention
obligation to providers of “publicly” available electronic communications
services or of a “public” communications network; a clear definition of
“exceptional circumstances” under which the maximum retention period can be
extended).

The responsible cabinets adapted the draft law proposal and royal decree
according to most of the remarks made by the Belgian DPA and recently
pressured the united commissions of Justice in the Chamber and Senate into
holding a debate on data retention.

First the Minister of Justice himself came to the Parliament on 20 January
2010 to convince the Parliament of the urgent need for a Belgian data
retention scheme and to cautiously check whether a political majority could
be found in Parliament to agree on a data retention law before June 2010.
Hardly two weeks later, on 2 February 2010, a hearing was organized with
representatives of many stakeholders, but it was clear that everything had
to take place within a tight period of time, leaving hardly any room for a
sincere debate.

The reason behind this strategy is the upcoming Belgian presidency of the
European Union in the second half of 2010 and the eagerness of the
government to prove their ability to lead the evaluation of the Data
Retention Directive at the European level. The Minister of Justice indicated
that the Data Retention Directive had provoked a lot of consternation
throughout European Member States, but didn’t draw any conclusions for a
national approach on the transposition of this Directive. On the contrary,
the minister argues for a swift transposition with an final deadline in
June 2010. The reason for this deadline is clear, since the Belgian
government will take over the presidency of the European Union as of 1 July
2010 and it wants to prevent looking silly for not having transposed the
Directive yet while having to lead its evaluation at the European level.

Belgium rightly considers the Data Retention Directive and its evaluation as
a very important dossier since there are many opposing views throughout the
European Union with some wanting it annulled or at least restricted and
others, among which the Belgian government, wanting it to be extended (e.g.
concerning the list of data to be retained and the retention period).
Nevertheless, it is a weak argument to ignore human rights especially since
the absolute necessity of data retention has never been proven, nor at the
European level nor at the Belgian level.

At the moment, it is unclear how and when the responsible cabinets will
proceed with their plans for a Belgian data retention scheme. No formal
decisions were taken at the recent hearing but given the urgency with which
the Minister of Justice is treating this dossier, one can only expect to
find a formal law proposal to be introduced in Chamber or Senate very soon.
However, some of the representatives of the Chamber and Senate that attended
the hearing (and of whom some are important representatives of the same
political parties that make up the government) were very critical of data
retention in general and the presented draft law proposal and royal decree
in particular. One of their demands was to wait for the final verdict of the
German Constitutional Court before starting legislative work on transposing
the
Data Retention Directive.

Campaign against the Data retention in Belgium
http://www.bewaarjeprivacy.be

Consultations on Data retention (17.05.2008 and 18.06.2008)
(only in Dutch)
http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/27-05-08_Publieke_raadpleging_mbt_voorontwerp_omzetting_Richtlijn_2006-24-EG.pdf

http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/18-06-08_Samenvatting_publ_consultatie_omzetting_Richtlijn….pdf
(only in French)
http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/2008.05.27-ConsultationDataRetention_FR.pdf

http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/20080715-Synthese2bConsultation2bData2bretention2bcontributions_FR.pdf

Draft Law on Data retention (in Dutch and French, 27.08.2009)
http://bewaarjeprivacy.be/sites/bewaarjeprivacy.be/files/20090827_MvT__Voorontwerp_van_Wet.pdf

Belgium Data Protection Authority Opinions (2008)
(only in Dutch)
http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/Advies_nr._24-2008_CBPL_van_2_juli_2008.pdf

http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/20080903_Advies_CBPL_mbt_ontwerp-KB_medewerkingsplicht.pdf
(only in French)
http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/avis_24_2008.pdf

http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/avis_29_2008.pdf

Note of the Minister of Justice (20.01.2010, only in Dutch)
http://bewaarjeprivacy.be/sites/bewaarjeprivacy.be/files/201001_Debatnota_inzake_dataretentie_MvJ_Nl.pdf
(only in French)
http://bewaarjeprivacy.be/sites/bewaarjeprivacy.be/files/201001_Note_de_debat_concernant_la_retention_des_donnees_MdJ_Fr.pdf

(Contribution by Maartje De Schutter – Liga voor Mensenrechten, Belgium)