Data Retention has arrived in Austria

By EDRi · May 4, 2011

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Deutsch: [Vorratsdatenspeicherung erreicht Österreich |]

While the Czech Constitutional Court has recently declared the national data
retention legislation unconstitutional, the Legal Services of the German
Bundestag has found it impossible to ensure the legality of the Data
Retention Directive and the European Commission itself still struggles to
prove the necessity and proportionality of the Directive, the Austrian
Parliament adopted on 28 April 2011 the pending regulations necessary for
the implementation of the EU Data Retention Directive in Austria.

In the respective parliamentary session, the Coalition Government primarily
planned to celebrate some new ministers following a government reshuffle
within the conservative party (ÖVP). However, the debate on the data
retention legislation was set on the agenda later in the evening when the
live TV coverage had already ended. This plan to hide the issue from the
public was evaded by the opposition by raising a so-called objection debate,
i.e. a MP asked for the deletion of the topic from the agenda – an issue
that has to be discussed first.

This means that interested citizens got the chance to follow the hot debate
live on their TV screens: While the opposition again raised concerns about
the compatibility with fundamental rights and accused the ruling parties
(SPÖ – social democrats and ÖVP – conservatives) of spying on the citizens,
the government dug their heels in and refused any compromise. Minister of
infrastructure Doris Bures (SPÖ) – in charge of the necessary amendment of
the telecoms regulations – argued that she was just executing EU provisions
and the implementation was necessary to avoid EU sanctions.

Furthermore, she claimed the implementation of the EU directive would cover
the absolute necessary minimum only. This is true as it regards the
retention period of the collected data which will be limited to six months.

Unfortunately, this is not true at all as it regards the access to the
retained data which is not subject to a judicial decree in all cases. On the
contrary, the amendments of the Austrian Security Police Act and the Code of
Criminal Procedures foresee a wide range of possibilities for the public
prosecution and the Police to access the data pre-emptively e.g. “in case of
an general danger”. This broad exemptions have been introduced by the
minister of interior and the minister of justice – both led by members of
the conservative party ÖVP – and after the public consultation for the draft
law on the telecom-part has been closed.

Simultaneously, the safeguards foreseen are relatively weak and the remedy
provisions are not well established. A fact which was even stated in an
expertise from the legal services of the Austrian Chancellery just a few
weeks ago.

Despite this, the implementation of the Data Retention in Austria was
adopted later the day with the consent of the delegates of the coalition
partners SPÖ and ÖVP. The opposition formed by the green party and the two
right wing parties FPÖ and BZÖ voted unanimously against the “dishonourable

The Austrian Journalists Association was shocked when they realised that,
seemingly, no exemptions are foreseen for “sensitive professions” such as
journalists, lawyers, hot lines for pastoral or social care, medical care
and the-like. Something the government has promised all the time and used
for the reassurance of the respective interest groups.

By return, the opposition announced to bring the data retention provisions
to the Constitutional Court. Provided three quite diverse proponents from
the green and the right wing side find a consensus in this matter, they
would form at least one third of the delegates. This is the minimum number
that enables MPs to file a constitutional complaint right after the
respective law has passed the parliament and yet before the law enters into
force on 1 April 2012.

If the opposition cannot find an agreement, the civil society is already
raring to go. The Privacy Groups ‘Arge Daten’, ‘AKVorrat’ and others have
already signaled that they are willing to file a complaint on the very first
date possible. Unlike to the members of the parliament, citizens have the
possibility to file a complaint against a law only when this law is already
in force and in case they are personally affected by the provisions in

Data Retention passes the Austrian Parliament – Opposition criticises
infringement of fundamental rights (Parlamentskorrespondenz Nr. 408,
28.04.2011, only in German)

Austrian Telecom Act – TKG 2003 (only in German)

Code of Criminal Procedures 1975 and Austrian Security Police Act

Parliamentary Debate on the implementation of the Data Retention Directive
in Austria (only in German, 28.04.2011) (1/3) (2/3) (3/3)

Expertise from the legal services of the Austrian Chancellery on the
Austrian provisions to implement the EU data retention directive (only in
German, 3.03.2011)

Austria: Data retention adopted, opposition plans to file complaint

Defending press freedom starts in one’s home country – Press release from
the Austrian Journalists Association (only in German, 2.05.2011)

Parliament’s decision on data retention not easy to comprehend – Press
release from the Interne Service Providers Austria (only in German, 2.05.2011)

EDRi’s Shadow evaluation report on the Data Retention Directive (2006/24/EC) (17.04.2011)

(Contribution by Alice Sedmidubsky –