[FYI] (Fwd) FIPR-Bulletin: FLASH: new EU Presidency position on traffic data retention (not good)

["Axel H Horns" <horns@ipjur.com>]

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To:             	<bulletin@admin.fipr.org>(FIPR Bulletin)
From:           	"Caspar Bowden" <cb@fipr.org>
Subject:        	FIPR-Bulletin: FLASH: new EU Presidency position on traffic data retention (not good)
Date sent:      	Fri, 17 May 2002 17:10:06 +0100

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The following document, dated yesterday, is published on the EU
Council website. They are propoals from the Presidency to the member
state governments for revised positions on negotiating the new Comms
Data Protection Directive.

The sections dealing with data retention are below. In essence they
attempt to legitimise blanket retention of traffic data on entire
populations, and pass the buck to ECHR jurisprudence.

This is in stark contrast to the position taken by Stefano Rodota,
Chair of the official EU Watchdog on data protection :

"Systematic and preventive storage of EU citizens communications and
related traffic data would undermine the fundamental rights to
privacy, data protection, freedom of expression, liberty and
presumption of innocence. Could the Information Society still claim to
be a democratic society under such circumstances ?"

ARTICLE 29 - DATA PROTECTION WORKING PARTY 7th June 2001
http://www.statewatch.org/news/2001/jun/07Rodota.pdf

--
Caspar Bowden
Director, Foundation for Information Policy Research
Tel: +44(0)20 7354 2333                 www.fipr.org

(see orginal : for changes with regard to the common position are
indicated in bold, whilst changes to the amendments submitted are in
bold italics.)
http://register.consilium.eu.int/pdf/en/02/st08/08657en2.pdf

Recital 11

(11) Like Directive 95/46/EC, this Directive does not address issues
of protection of fundamental rights and freedoms related to activities
which are not governed by Community law.

Therefore it does not alter the existing balance between the
individual's right to privacy
and the possibility for Member States to take the measures [.]
referred to in Article 15(1) of this Directive, necessary for the
protection of public security, defence, State security (including the
economic well-being of the State when the activities relate to State
security matters) and the enforcement of criminal law, such as those
which allow Member States to require the provider of a public
communications network or publicly available electronic communications
service to retain traffic and location data in accordance with the
law. [.]

Consequently, this Directive does not affect the ability of Member
States to carry out lawful interception of electronic communications,
or take other measures, if necessary for any of these purposes and in
accordance with the European Convention of Human Rights and
Fundamental Freedoms as interpreted by the rulings issued by the
European Court of Human Rights. Such measures must be appropriate,
strictly proportionate to the intended purpose and necessary within a
democratic society.

....
Article 15(1)

1. Member States may adopt legislative measures to restrict the scope
of the rights and obligations provided for in Article 5, Article 6,
Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such
restriction constitutes a necessary, appropriate and proportionate
measure within a democratic society to safeguard national or State
security, defence, public security or the prevention, investigation,
detection and prosecution of criminal offences or of unauthorised use
of the electronic communication system, as referred to in Article
13(1) of Directive 95/46/EC. To this end Member States may inter alia
adopt legislative measures providing for the retention of data for a
limited period justified on the grounds laid down in this paragraph.
All the measures referred to in this paragraph shall be in accordance
with the general principles of Community law including those referred
to in Article 6 paragraphs 1 and 2 of the Treaty on European Union.
[...]

(Amendment 32 acceptable with small modification)

Recital 11

(11) Like Directive 95/46/EC, this Directive does not address issues
of protection of fundamental rights and freedoms related to activities
which are not governed by Community law.

Therefore it does not alter the existing balance between the
individual's right to privacy
and the possibility for Member States to take the measures [.]
referred to in Article 15(1) of this Directive, necessary for the
protection of public security, defence, State security (including the
economic well-being of the State when the activities relate to State
security matters) and the enforcement of criminal law, such as those
which allow Member States to require the provider of a public
communications network or publicly available electronic communications
service to retain traffic and location data in accordance with the
law. [.]

Consequently, this Directive does not affect the ability of Member
States to carry out lawful interception of electronic communications,
or take other measures, if necessary for any of these purposes and in
accordance with the European Convention of Human Rights and
Fundamental Freedoms as interpreted by the rulings issued by the
European Court of Human Rights. Such measures must be appropriate,
strictly proportionate to the intended purpose and necessary within a
democratic society.


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