EU May Be Forced To Redraft Data Retention Proposals

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

15 April 2005

Civil liberties organisation, Statewatch reported recently that the legal teams advising the European Council and Commission have warned that proposed EU legislation dealing with data retention may be illegal.

Under the proposed Framework Decision on the retention of telephone and internet data put forward in April 2004 by the United Kingdom, providers of communication services would be required to keep certain types of user data for at least a year.

In December 2004, the European Council went further, amending the proposed legislation to state that ISPs and other telecoms firms should be required to retain all data "processed/generated by the service provider, even if the data have no interest for the service provider".

However, according to Statewatch:

"Both Legal Services conclude that the provisions in the proposed Framework Decision dealing with the obligations on service providers to retain and collect data on the use of phones and the Internet would be illegal, because this issue should instead be addressed by EC 'internal market' legislation on the regulation of telecommunications."

"In fact, a controversial EC Directive of 2002 already addressed this issue, by leaving Member States a discretionary option to require telecoms service providers to retain data on public use of telephones and the Internet for use by the law enforcement agencies."

It went on to add that:

"The practical impact of the two Legal Services' opinions, if they are accepted by the EU institutions and the Member States, is that the proposed Framework Decision will have to be amended to take out all provisions relating to the obligations of telecom service providers. These provisions will instead appear in a separate parallel proposal for a Directive, which the Commission has already said it will propose in the near future."

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