Statewatch report: Summary
EU governments to give law enforcement agencies access to all communications data



* EU laws on data protection and privacy to be reviewed to meet demands of the "agencies" for access to all telecommunications content and traffic data

* The Council of the European Union to back retention and archiving of all phone-calls, e-mails, faxes, internet usage and websites for up to seven years
* "ENFOPOL 98" to go through EU Justice and Home Affairs Council at the end of May: extending surveillance to mobile phones, internet usage and websites
* access to documents refused because disclosure "could impede the efficiency of ongoing deliberations"

The Council of the European Union (the 15 EU governments) is about to back the demands of EU "law enforcement agencies" for full access to all telecommunications data to be written into all Community legislation in the future, and for existing laws to be re-examined - a move that is even more far-reaching than the decision on 17 January 1995 to sign up to the FBI plan for the interception of telecommunications. At the centre is the issue of "data retention" (the archiving of all telecommunications for at least seven years). By backing the law enforcement agencies' demands the EU governments will be coming out in direct opposition to the strongly-held views of the Data Protection Commissioners.

The January 1995 decision by the EU meant that it adopted "Requirements" for interception agreed with the FBI. In September 1998 an attempt to update the "Requirements" to cover the internet and satellite phones was shelved because of a public outcry ("ENFOPOL 98"). Instead EU member states started amending their national laws on interception. But last year two proposals from the European Commission on personal data protection and privacy and "combating computer-related crime" threatened to undermine the demands of the law enforcement agencies for access to all telecommunications data. Six EU governments lead the opposition to the erasure of traffic data - as required under current community law: Belgium, Germany, France, Netherlands, Spain and the UK.

The "Council Conclusions" (ENFOPOL 23, 30.3.01) say:

1. The obligation for operators to erase and make traffic data anonymous "seriously obstructs" criminal investigations;

2. It is of the "utmost importance" that "access" be "guaranteed" for criminal investigations;

3. It calls on the European Commission to:

a) take "immediate action" to ensure that law enforcement agencies now and "in the future" get access in order to "investigate crimes where electronic communications systems are or have been used";

b) the "action" should be "a review of the provisions that oblige operators to erase traffic data or to make them anonymous" (emphasis added)

In short, existing EU laws on data protection and privacy have to be reviewed to enable the retention of traffic data for the investigation of "crime" (not serious organised crime, but any crime). All future laws, including the proposals currently being discussed on the protection of privacy and computer-aided crime should ensure the retention of data. All the protections for personal freedom and privacy put in place through international data protection rules and privacy Directives would be fatally undermined at a stroke.

ENFOPOL 98 updated (ENFOPOL 29) is scheduled for adoption at the next meeting of the Justice and Home Affairs Council on 28-29 May, together with a Resolution emphasising the great importance of ensuring that the redefined "Requirements" are built into community measures under the "first pillar". The adoption of the Conclusions, if agreement can be reached on the text, has been "pencilled in" for the meeting of the Telecommunications Council on 27 June - at the same meeting where the Council will adopt a "common position" on the new data protection and privacy Directive.

Statewatch was refused access to these documents by the Council on the grounds that it could "impede the efficiency of the ongoing deliberations".

Tony Bunyan, Statewatch editor, comments:

"Authoritarian and totalitarian states would be condemned for violating human rights and civil liberties if they initiated such practices. The fact that it is being proposed in the "democratic" EU does not make it any less authoritarian or totalitarian."

The American Civil Liberties Union (ACLU) has launched a campaign on the same issues: ACLU

Full report: Full report  Documentation: Documents Updates: Updates back to: S.O.S.Europe



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