EDRi letter: EC proposes reduced retention periods for retained data

By EDRi · November 16, 2011

This article is also available in:
Deutsch: [Vorratsdaten: Kommission schlägt Verkürzung der Speicherdauer vor | https://www.unwatched.org/EDRigram_9.22_Vorratsdaten_Kommission_schlaegt_Verkuerzung_der_Speicherdauer_vor?pk_campaign=edri&pk_kwd=20111116]

In September 2011, European Digital Rights and 37 other NGOs sent a
detailed letter to the European Commission with regard to the current stage
of the review of the Data retention Directive – the impact assessment. The
purpose of the letter was to provide early input to the Commission, in order
to give maximum opportunity to take our concerns into account.
The response from the Commission acknowledges the problems with the
Directive. Without being specific, Commissioner Malmström responded that the
maximum retention periods needs to be reduced and also pointed out that the
text must be improved with regard to its clarity. She also recognised and
accepted the need for a followup of the methodology detailed in the
Fundamental Rights Checklist and that cost-reimbursement for Internet
providers is a way of minimising access to retained traffic data.

The Commissioner promises improvements to resolve two problems in the
Directive: – the length of the maximum retention periods and the lack of
clarity (and therefore predictability) of the Directive. However, the
recognition of these two problems implies an acceptance of doubts regarding
the compliance of the current Directive with the Charter of Fundamental
Rights and the European Convention on Human Rights. .

This raises an important question: – in such circumstances, how can it be
appropriate to recognise the questionable legality of the Directive, on the
one hand, and undertake legal proceedings against Germany, Romania and
Sweden for failing to implement the Directive, on the other?

Rather disappointingly, the Commissioner decided to answer a question which
was not asked, namely how difficult it would be to get major improvements
past the Council of Ministers. While the political obstacles to an adequate
resolution of the data retention Directive’s problems are certainly massive,
the current College of Commissioners took an oath, as individual citizens,
to defend the Charter on Fundamental Rights. This oath was without
exceptions, to cover challenging political environments. However, the
subtext of the Commissioner’s response to civil society is clear – without a
shift in the positions of Member States, the Commission does not feel able
to resolve the deep problems with data retention.

Nonetheless, the tone of the letter is very positive and the constructive
engagement of civil society is clearly welcomed. EDRi and the co-signatories
of the letter will continue to engage constructively with the Commission.

Joint letter on data retention (26.09.2011)

Commissioner Malmström’s response (dated 31.10.2011)

Fundamental rights checklist

Oath to respect the EU Treaties and Charter

(Contribution by Joe McNamee – EDRi)