[FYI] European Parliament and EU governments on a collision course over the retention of data (telecommunications surveillance)

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

http://www.statewatch.org/news/2001/nov/15eudata.htm

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European Parliament and EU governments on a collision course over the 
retention of data (telecommunications surveillance)  


At its meeting on 16 November the Council's Working Party on 
Telecommunications finalised the draft common position on the 
Commission proposal to revise the 1997 EU Directive on the processing 
of personal data and the protection of privacy in the 
telecommunications sector (full-text dated 20 November below). The 
position represents the views of all 15 governments in the Council of 
the European Union.  

The Council's "common position" is to be adopted at the 
Telecommunications Council at its meeting on 6-7 December in 
Brussels. This follows the adoption, by the European Parliament at 
its plenary session in Strasbourg on 14 November 2001, of its 1st 
reading report on the proposed new Directive by 339 votes in favour, 
92 against and 89 abstentions. The final decision has to be taken 
under the "co-decision" procedure whereby the Council and the 
parliament have to agree on the text.  

The positions of the Council and the European Parliament are 
diametrically opposed on the issue of the retention of 
telecommunications data: the Council wants all traffic data for e-
mails, phone-calls, faxes and internet usage to be retained for so 
the law enforcement agencies can have access to it while the 
parliament report argues that - as under the existing EU Directive - 
surveillance should be exceptional and authorised in each case by a 
specific court or other order and that "any form of wide-scale 
general or exploratory electronic surveillance is prohibited".  

The automatic retention of all telecommunications traffic data now 
being proposed by EU governments was demanded in the letter from 
President Bush (US/Bush letter) even though a similar power does not 
exist in the US - not even after the far-reaching US Patriot Act was 
passed last month.  

Text of the different positions  

The text the Council is intending to adopt on Article 15.1 reads as 
follows:  

"Article 15 Application of certain provisions of Directive 95/46/EC  

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) to (4), and Article 9 of this Directive when such 
restriction constitutes a necessary measure to safeguard national 
security, i.e. state security, defence, public security, 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 provide for the retention of 
data for a limited period justified on the grounds laid down in this 
paragraph, in accordance with the general principles of Community 
law."  

The text of the European Parliament report, Article 15.1 read as 
follows:  

"Article 15, paragraph 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) to (4), and Article 9 of this Directive when such 
restriction constitutes a necessary, appropriate, proportionate and 
temporary measure within a democratic society to safeguard national 
security, defence, public security, 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. These measures shall be entirely 
exceptional, based on a specific law which is comprehensible to the 
general public and be authorised by the judicial or other competent 
authorities on a case-by-case basis. Under the European Convention on 
Human Rights and pursuant to rulings issued by the European Court of 
Human Rights, any form of wide-scale general or exploratory 
electronic surveillance is prohibited."  

The text of the Commission's proposal on Article 15.1 reads as 
follows:  

"Article 15, paragraph 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) to (4), and Article 9 of this Directive when such 
restriction constitutes a necessary measure to safeguard national 
security, defence, public security, 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."  

Tony Bunyan, Statewatch editor, comments:  

"The resolution of this issue is going to define whether the EU is 
going to maintain data protection and the right to privacy as 
fundamental standards in any democracy or whether it is going to 
continue down what is becoming an increasing authoritarian road where 
the entire population of the EU can be placed under surveillance"  

Full-text of the Council's common position: 13883/01 (pdf) Full-text 
of adopted European Parliament report (which includes text of the 
original Commission proposal): Cappato For full background and 
documentation on this issue see: Statewatch documentation centre  

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