Brussels, 31 October 2000



ECO 316

from: Working Party on Police Cooperation
to: Article 36 Committee

No. previous doc.: 10961/00 ECO 242 CODEC 616; 10252/00 ENFOPOL 52 ECO 210

Subject: Relations between the first and third pillars on advanced technologies - Proposal for a Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector (doc. COM (2000) 385 = 10961/00 ECO 242 CODEC 616)

The Working Party on Police Cooperation considered the aforementioned draft Directive at its meeting on 25 October 2000. Various delegations (B, D, F, NL, S, UK)expressed misgivings about Article 6. The article mentioned effectively states that "traffic data relating to subscribers and users processed for the purpose of the transmission of a communication and stored by the provider of a public communications network service or network, must be erased or made anonymous upon completion of the transmission".

That provision would render it impossible to trace "historical" data, would seriously reduce the investigation services' chances of identifying perpetrators of serious offences involving the use of the Internet such as, for example, child pornography and incitement to racial hatred. The collection and storage of traffic data are of great importance, as is the investigation services' ability to obtain it rapidly, which is explicitly envisaged in the Resolution on 17/01/1995 (OJ C 329, 4.11.96, p.1), in the draft Council of Europe Convention on Cyber-crime and the G8 Action Plan to combat IT-related crime; and it is implied in the Convention on Mutual Assistance in Criminal Matters (OJ C 197, 12.7.00, p.1).

The Working Party on Police Cooperation also felt that the draft Article 15 would not ensure that a fair balance is struck between the respect for privacy and freedoms and the means for combating crime related to advanced technology.

That article "allows Member States the possibility to adopt more stringent legislative measures than those provided for in the current draft, where necessary to safeguard State security, defence, public safety, prevention, research, detection and prosecution of criminal offences and the unauthorised use of the electronic communications system, as provided for in Article 13*1 of the 95/46/CE Directive" (OJ L 281, 23.11.95, p.31).

Thus, its scope appears very relative in a context where the framework is free competition:

- On the technical level, telecommunications equipment effectively tends to be standardised and produced by market leading businesses: standard European telecommunications equipment will provide for the application of the rule, that is, the erasure of traffic data. As a result Member States wishing to apply the safeguard clause provided for by Article 13 by way of exception, will almost be obliged to recast the standard equipment, entailing considerable extra costs.

- Regarding regulatory aspects, it should be noted that another draft Directive aimed at establishing a common framework for the authorisation of telecommunications networks (doc. 10979/00 ECO 246 CODEC 626), envisages eliminating individual licenses.

From then on, how will any Member State be able to assert its security and public order concerns (cf Article 15 referred to above) if it is no longer even necessary* to obtain a license to use the network? This last proposal would in general be liable to jeopardise sovereign State prerogatives such as crisis management, judicial interceptions, etc. by not taking into account the collection and storage of traffic data by the service operators/providers, the definition of storage time, and the rapid availability of such data to investigating services.

The schedule for the development of these Directives is already well advanced: the matter will be referred to the European Parliament in January 2001; they will have to be incorporated into national legislation before 31.12.2001*.

The Working Party on Police Cooperation wishes that the Article 36 Committee examine these observations so that it may use every available channel to bring this problem to the attention of the authors of the draft Directives concerned.