EDRi Obtains Leaked Commission Data Retention Proposal

by Ulrika Lomas, for LawAndTax-News.com, Brussels

02 August 2005

Lobby group EDRi (European Digital Rights) has obtained an internal Commission draft of a proposed Directive on data retention, which would require storage of data about phone calls for one year, and data about IP calls for six months.

The European Parliament has sent back for further study in Committee a Council proposal on data retention known as the 'draft Framework Directive' which sets the retention periods at 3 years for phone data and one year for IP data. Although, under the Council-originated procedure, the Parliament has only an advisory role, the Parliament's decision has caused a stand-off, and the Commission hopes that its proposal, which would be subject to the co-decision procedure, stands a better chance of becoming law.

According to EDRi, the new Commission draft is essentially the same as the draft Framework Directive other than for the shortened retention periods, and ignores a compromise proposal which had been achieved by the ministers of Justice and Home Affairs (the JHA Council) to create a two-step approach, starting with telephony data and introducing internet data retention at a later stage.

At this point in time, says EDRi, the Commission does not mention a full IP logfile from every ISP to trace every incoming and outgoing communication, but limits the demands to IP-address, the Computer internal MAC address, username, e-mail addresses and a logfile of every sent and received e-mail. Mobile telephony operators would have to store SMS traffic data for 1 whole year, and to keep detailed location data for 1 year, including mapping Cell IDs to the geographical location of the caller.

There is now likely to be a dust-up between the Council, the Commission and the Parliament, with an uncertain outcome. The Commission's proposal will not be officially published until later in August, a month in which very little happens in Brussels, in any event.

All previous proposals for an EU data retention scheme have met with considerable opposition from civil liberties groups. In 2003, human rights group Privacy International obtained a formal legal opinion on the Council’s proposals which suggested that the draft Decision was unlawful because it breached the Convention on Human Rights. In November 2004, the EU Data Protection Working Party, an independent EU advisory body, also issued a negative preliminary Opinion on the draft Decision.

UK Home Secretary Charles Clarke and the EU's Interior Ministers' Council agreed in July that 'Security must take priority over rights'. Addressing the European Parliament's Civil Liberties Committee to present the programme of the UK presidency, Mr Clarke gave support to moves to speed up the data retention Directive.

Parliament's rapporteur on data protection, Alexander ALVARO (ALDE, DE), who asked MEPs in June to reject the proposal to store data from phone calls and emails, told Mr Clarke: "You have our support but you will not get blind obedience. I find very annoying the rhetorical way people use to explain how to fight terrorism. (...) You argue that intelligence units are the best weapons but they failed in New York, Madrid and London". Many MEPs insisted that Member States must justify the data retention measures. Kathalijne Maria BUITENWEG (Greens/EFA, NL) said "Privacy is not something holy but it is up to us to prove a measure is necessary".

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