Implementing a flawed data retention directive?

By EDRi · July 13, 2011

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Deutsch: [Müssen wir eine unkorrekte Vorratsdaten-Richtlinie umsetzen? |]

While the future of data retention seems unclear, in Germany
conservative MPs are pressing the Justice Ministry to bring the legislation
in line with the current text of the directive, while liberals and greens
tend towards a restriction of the information storage.

In March 2010, the German Constitutional Court ruled as void the national
law transposing the directive which was proposing the storage of data for
six months and ordered the destruction of the already collected data. Now,
the Justice Minister has again been asked to “do her duty” and draft
legislation in line with the European directive. Peter Altmaier, a
parliamentary leader in the CDU, believes that a way must be found to meet
the conditions set by both the EU and the constitutional court.

But the directive is considered to be flawed even by German MEPs: “The Data
Retention Directive was contentious when it passed five years ago
and it remains so today”, said the liberal German MEP Alexander Alvaro who
believes that, while the German law enforcement and government agencies need
the “necessary tools and resources to stop and deter acts of terrorism, the
EU must respect the privacy of its citizens.”

He drew attention to the recent European Commission report that has
underlined privacy concerns and revealed flawed, inconsistent data retention
practices which raise serious questions as to the effectiveness , necessity
and proportionality of the law.

This assessment is accurately proved by a recent document summarising the
position of the parties at the European Court of Justice in the Bonnier case
(C-461/10). In its opinion, the Commission seems to argue that the
telecommunication data retained under the safeguard that it is retained only
for the investigation and prosecution of serious crime can be used without
problems in order to investigate intellectual property-related offences,
that might not even be crimes, let alone serious crimes. The text also
implies that the retained data may be given directly to the copyright
owners in a civil lawsuit.

With the “old” arguments for a data retention directive, a new leaked
document from UK, Ireland and France is arguing to the other Member States
that data retention is very necessary for law enforcement and the Directive
should remain unchanged. Moreover, the documents suggest that anything less
than a 12 month retention period is unacceptable.

Most of the operational examples that claim to provide a “qualitative
demonstration” of the data retained dp not seem to be relevant for data
retention, with the data being obtained directly from the victims and other
people or too new, therefore accessible directly from electronic
communications operators with a specific judicial warrant, and not retained
based on data retention requirements.

The same UK police force is now being dragged in the News of the World
scandal, with allegations that senior journalists from the said newspaper
used to pay some police officers to find celebrities or other people they
wanted to write about by tracking their mobile phone signal.

The Data Retention Directive Is flawed for Europe (updated 8.07.2011)

German MPs pressure minister on data retention (7.07.2011)

European Court of Justice – Hearing on Bonnier case (only in Swedish)

Leak document of data retention opinion of UK, France and Ireland

News of the World accused of paying police to track stars’ phones (12.07.2011)