FITUG e.V.
Förderverein Informationstechnik und Gesellschaft
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------- Forwarded message follows ------- 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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