Statewatch investigation, full report: EU-FBI telecommunications surveillance system

EU governments to give law enforcement agencies access to all communications data

The new initiative by the EU governments to back the demands of their law enforcement agencies (LEAs) only came to light when Statewatch "acquired" a series of EU documents which it had been refused access to. The documents in question were refused on the grounds that:

"the matter was still under discussion..[and] disclosure of these document could impede the efficiency of the ongoing deliberations."

The demands of the law enforcement agencies centre on the issue of "data retention", that is the recording and storage of all telecommunications data:

- every phone call, every mobile phone call, every fax, every e-mail, every website's contents, all internet usage, from anywhere, by everyone, to be recorded, archived and be accessible for at least seven years

The move by the EU governments (the Council of the European Union) has been sparked by a draft proposal put forward by the European Commission on "the processing of personal data and the protection of privacy in the electronic communications sector" (COM(2000)385 final, 12.7.00). The proposal would update Directive 97/55/EC but is not "intended to create major changes to the substance of the existing Directive", merely to "update the existing provisions". The proposal thus builds on the principles of the 1997 law and data protection rules established in EU community law.

Also under discussion is a related Communication from the Commission on "Creating a Safer Information Society by improving the security of information infrastructures and combating computer-related crime" (COM(2000)890 final) (see Statewatch, vol 11 no 1). Here the Commission, in line with community law, emphasises that: "interceptions are illegal unless they are authorised by law when necessary in specific cases for limited purposes".

The EU-FBI surveillance plan comes home

The EU adopted the "Requirements" developed by the FBI on 17 January 1995 - the "Requirements" set out demands on network and service providers to provide the law enforcement agencies with both data from intercepted communications and real-time access to transmissions (see Statewatch, vol 7 no 1 & 4 and 5; vol 8 no 5 & 6; vol 9 no 6; vol 11 no 1).

In September 1998 the EU's Police Cooperation Working Party proposed that the "Requirements" be extended to cope with internet and satellite phone telecommunications. The initial report (ENFOPOL 98) went through several drafts and ended up as ENFOPOL 19 (15 March 1999) which gathered dust. It transpired that because of the "negative press" surrounding ENFOPOL 98, which coincided with exposures on the ECHELON spying system, there was a lack of "political support" to move forward on the issue (report on the Police Cooperation Working Party meeting on 13-14 October 1999 by the European Commission).

In the spring of 2000 the EU's Police Cooperation Working Party decided that issues previously discussed under the title of "interception of telecommunications" would now be called "advanced technologies". A report by the same working party (ENFOPOL 52, 12 July 2000) spelt out that "an informal inter-pillar link" should be created between their work and that being carried out under the "first pillar" on the "global Information Society". The purpose was to bring to the attention of the Telecommunications Council and the Internal Market Council, working on technical and commercial decisions, the need to: "safeguard the possibility of lawful interception".

On 29 May 2000 the Convention on Mutual Assistance in criminal matters was agreed by the EU Justice and Home Affairs Council and is now out for ratification by each of the 15 EU national parliaments. This includes provisions for the interception and exchange of telecommunications data based on specific requests but makes no provision for the retention of data (except in individual, authorised, instances).

This Convention and the work of intergovernmental groups, like ILETS (International Law Enforcement Telecommunications Seminar) and the G8 Sub group on High-Tec Crime, and the adopted 1995 "Requirements" provide the basis for provisions in new national laws on the interception of telecommunications across the EU - for example the UK's Regulation of Investigatory Powers Act (R.I.P. Act) which came into force on 28 July 2000.

All of these new legal powers and demands on the network and services providers under the "Requirements" do not, however, give the law enforcement agencies everything they need as they only cover the exchange and interception of data on the production of an "interception order" (eg: warrants under national laws). None of them provide for the wholesale retention of data and access to it by law enforcement agencies except in specific authorised cases.

EU Data Protection officials come out against data retention

Data Protection Commissioners in the EU and their officials, who attend a multitude of working parties, have long been aware that the "law enforcement agencies" in quasi-secret international fora have been arguing not for data to be retained for 30 days or 90 days (as it is currently for billing purposes) but for much longer - for up to seven years at least. In her annual report for 2000 the UK Data Protection Commissioner, Elizabeth France, said: "The routine long-term preservation of data by ISPs [internet service providers] for law enforcement purposes would be disproportionate general surveillance of communications".

The spring Conference of European Data Protection Commissioners in Stockholm, 6-7 April 2000, issued a declaration on the "Retention of Traffic Data by Internet Service Providers" saying:

"such retention would be an improper invasion of the fundamental rights guaranteed to individuals by Article 8 of the European Convention on Human Rights. Where traffic data are to be retained in specific cases, there must be a demonstrable need, the period of retention must be as short as possible and the practice must be clearly regulated by law."

The meeting of the International Working Group on Data Protection in Telecommunications in Berlin on 13-14 September 2000 adopted a common position on the Council of Europe draft Convention on "cyber-crime" (see Statewatch vol 10 no 6). This said that the storing of "data on all telecommunications and Internet traffic for extended periods" is:

"disproportionate and therefore unacceptable. The Working Party underlines that traffic data are protected by the principle of confidentiality to the same extent as content data (Article 8 of the European Convention on Human Rights)."

The European Commission lent weight to the Data Protection officials' arguments in its draft proposal, put out at the end of last year (and agreed on 26.1.01), on "Creating a Safer Information Society by improving the security of information infrastructures and combating computer-related crime". This says that laws in EU member states have to be in line with community law on data protection and privacy:

"safeguards for the protection of the individual's fundamental rights of privacy, such as limiting the use of interception to investigations of serious crime, requiring that interception in individual investigations should be necessary and proportionate, or ensuring that the individual is informed about the interception as soon as it will no longer hamper the investigation" (p16)

On 22 March 2001 EU Data Protection Working Party also published a strong opinion on the Council of Europe's Draft Convention on cyber-crime. It said that the provision in the draft proposal which does "not oblige signatories to compel providers to retain traffic data of all communications should in no way be revised". The EU has already indicated that it will adopt this Convention.

The Data Protection Commissioners and others in the field have, together, made formidable arguments for maintaining rights and protections put into place in the EU during the 1990s on data protection and privacy.

Law enforcement agencies fight back

In the face this substantial opposition to the automatic retention and storage of content and traffic data for long periods (for longer than allowed under EU law, around 30 days) the law enforcement agencies needed heavy-weight "political support", denied earlier, from the governments of the EU (the Council).

A far-reaching report sent by the UK National Criminal Intelligence Service (NCIS) to the Home Office on 21 August 2000 set out the demands of the agencies which reflect the conclusions of discussions in international fora in which the UK plays a prominent role, such as in G8 (see Statewatch, vol 10 no 6). The report called for the retention of all content and traffic data from all forms of telecommunications (phone-calls, mobile phone-calls, faxes, websites and internet usage) to be recorded and kept for at least seven years. What was of particular note is that this report was presented on behalf of all the UK law enforcement agencies and all the UK's security and intelligence agencies (MI5, MI6 and GCHQ). This suggests that while the primary demand is coming from the former the latter have a major stake too. This report was not in the public domain until December 2000.
Confirmation of a counter-attack by the law enforcement agencies emerging in the EU came in July 2000. As noted earlier, ENFOPOL 52 (12.7.00) from the Working Party on Police Cooperation had called for "an informal inter-pillar link" to be created between their work and that being carried out under the "first pillar" on the "global Information Society". This was the very same day, 12 July 2000, that the Commission put out its proposal on personal data and the protection of privacy (COM(2000)385).

The minutes of the Council's Working Party on Police Cooperation for the meeting on 19/20 July note a lengthy "exchange of views" with the French Presidency on the "relations between the first and third pillars in the field of advanced technologies". It also noted the Commission's proposal and "decided to come back to this item regularly during the next six months".

It was a report from the working party to the Article 36 Committee (senior interior ministry officials from the 15 EU member states) dated 31 October 2000 which began to express the need for urgent action. This report (ENFOPOL 71) said six countries - Belgium, Germany, France, Netherlands, Spain and the UK - had "grave misgivings" about the effect of Article 6 which effectively states that traffic data "must be erased or made anonymous upon completion of the transmission" (emphasis in original). The provision would "render it impossible to trace "historical" data and seriously reduce the investigation services' chances of identifying perpetrators.." The report then tries to justify its demands by reference to: i) the 17 January 1995 "Requirements" which it does not cover the retention of data indefinitely; ii) the Council of Europe draft Convention on cyber crime which in the latest version excludes general data retention and iii) the Convention on Mutual Assistance in criminal matters where data retention is "implied".

The report concludes by noting that the Commission's proposed measure "is already well advanced" and the Working Party urges the Article 36 Committee to:

"examine these observations so that it may use every available channel to bring this problem to the attention of the authors of the draft Directive concerned."

The minutes of the Article 36 Committee on 6 November 2000 state that the government delegations be asked to contact their colleagues working on "first pillar" working parties to coordinate:

"the first and third pillar work in the field of advanced technologies, notably the telecommunications sector. It should be avoided that first pillar data protection measures hinder unduly third pillar attempts to monitor telecommunications connections."

The Working Party on Police Cooperation updated its report in ENFOPOL 71 REV 1 (27.11.00) (see Statewatch, vol 11 no 1). This report states the demands of the law enforcement agencies starkly. While noting that their demands:

"would probably not be considered proportionate, as it would call into question the very aim of the draft Directive"

namely the protection of personal data and privacy, but it still goes on to argue that:

"It is impossible for investigation services to know in advance which traffic data will prove useful in a criminal investigation. The only effective national legislative measure would therefore be to prohibit the erasure or anonymity of traffic data."

This report urged the Article 36 Committee to "take into account the serious consequences the Directive would have for criminal investigations, public security and justice."

At a meeting on 14 December the Article 36 Committee some delegations (representing their governments) "advocated harmonising the period for storing data." The Committee decided to wait and see "how much account" the Commission took of delegations' (government) comments before deciding "whether to alert COREPER and the Council to the issue."

At the Justice and Home Affairs Council on 15 March this year, Commissioner Vittorino reported that at a hearing which took place on 7 March "the central question of the retention of traffic data dominated discussions".

However, it is clear that the Commission was not taking "much account" of the Council's view so that by 30 March the Swedish Presidency felt obliged to draw up draft Council Conclusions on the issue of data retention. The report recommending draft Conclusions on access by the law enforcement agencies to traffic data was discussed at the meeting of the Working Party on Police Cooperation on 6 April. The minutes of this meeting say that it:

"took note of the reservation by the representative of the Commission concerning the procedure followed within the Council"

Clearly the Commission was concerned that the Council was, unusually, considering adopting "Conclusions" which would fundamentally undermine its proposed Directive. The two new reports, dated 30 March (see below) were discussed at the Article 36 Committee meetings on 10 April and 3 May.

The key reports

The first new crucial report is ENFOPOL 29 (30.3.01) which reintroduces the highly criticised new definition of the "Requirements" to be laid on network and service providers in "ENFOPOL 98". It is intended that this report and an accompanying Council Resolution will go through the Justice and Home Affairs Council on 28-29 May.
The report looks at the "operational needs" of the LEAs as applied to the "Requirements" (IURs) adopted on 17 January 1995 (by the EU under "written procedure" and not made public until November 1996). It gives much more detail on their expectations than the bland "Requirements". As such it is an attempt to re-introduce the highly-controversial ENFOPOL 98 (and later drafts) which led to much adverse comment in the media (as a result of which it has been held up since March 1999).

The report looks at: "Applicable services" and makes clear that interception will cover all forms of telecommunications eg: ISDN (e-mail and internet usage), mobile phones and satellite phones. On IUR ("International User Requirement") no.1 it says, like ENFOPOL 98, that the law enforcement agencies expect to have access not just to the call content but also to:

"user addresses, equipment identities, user name/passwords, port identities, mail addresses etc"

plus IP addresses, account numbers, logon ID/passwords, PIN numbers and e-mail addresses. They also want access to the "transmitted" and "received" data and "any telecommunications associated with.. the subject of interception". A redefined "IUR 1.4" states that "associated data" includes "conference calls, call forwarding, mobile calls, network calls, call back services etc" must also be provided on the intercepted subject. An ominous "NB" says it also includes data "where it has been retained by providers in accordance with the requirements of their national legislation". "IUR 1.5" extends the meaning of "geographical location" to "geographical, physical or logical" location and "IUR 1.3" again refers to "national jurisdictions" in the context of excluding data which is not "within the scope of the interception authorisation", ie: some national laws might allow the inclusion of "excluded" data. "IUR 6" is another direct inclusion of a controversial proposal taken from ENFOPOL 98. It says that the LEAs are to be provided with:

a. full name of the person (company)
b. the residential address and
c. credit card details

This report extends the remit for interception to: all forms of telecommunications (including e-mails and internet usage) and requires personal details on the interception subject. It also contains a number of references to "national jurisdictions" where, by implication, powers may be greater than the norm.

Some EU governments see ENFOPOL 29 ("ENFOPOL 98") as simply "technical" changes to the "Requirements". However, they fail to understand that it is precisely the details of how the "Requirements" will be used that signals the enormity of the threat to data protection, individual privacy and fundamental freedoms.

A greater, and complementary, danger is the battle between the Data Protection officials and the law enforcement agencies over the retention of data (content and traffic details) for long periods (seven years or more) and the right of the law enforcement agencies to access this archived data at will for purposes of investigating any crime however minor or for the purpose of intelligence-gathering - so-called "fishing expeditions".

This is the enormous significance of the "Council Conclusions" in ENFOPOL 23 (30.3.01). The EU governments are, in effect, to tell the European Commission (and European Parliament) that the demands of the law enforcement agencies take precedence over the privacy and freedoms of people. Council officials will "spin" the usual line that "Conclusions" are not binding, but the timing of the decision and the enormity of its effect will brush this aside.

The draft proposal says that:

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

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

3. It calls on the European Commission to:

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

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

The "Conclusions" say that the Council:

1. "considers it important that the law enforcement authorities be not obstructed or hampered in their efforts to investigate crime, such as dissemination of child pornography or agitation against an ethnic group via the Internet"

This blatantly cynical use of "child pornography" and racism has become a standard justification for the extension of EU surveillance powers not just for these offences - but for all and any offence. These phrases have replaced "organised crime" and "illegal immigration", used for many years in a similar way.

2. "understands that on this issue.. it is important to find a solution that is well founded, proportionate and well-balanced"

It is not possible to "balance" the different interests. There is no need under EU law for commerce to keep data except for very limited periods (eg: 30 days to check billing). The existing "Requirements" and most national laws allow for the gathering of data for criminal investigation in specific instances subject to proper authorisation and legal safeguards.

3. "emphasises the opinion of the Council that the obligation for operators to erase and make traffic data anonymous, besides obstructing seriously crime investigations, also can lead to a decreasing confidence in, particularly, the electronic commerce..."

The EU governments fail to understand that is precisely the erasure of data and anonymity which creates "confidence in electronic commerce" by citizens. A wholesale reversal of this policy as envisaged would indeed create a "crisis of confidence".

4. "invites.. the European Commission to take immediate action with the purpose of ensuring that the law enforcement authorities also in the future will have the opportunity to investigate crimes where electronic communications systems are or have been used.. the action to be taken should comprise a review of the provisions that oblige operators to erase traffic data or to make them anonymous; the object of the action should be to ensure that the purpose of limitations regarding the personal data do not come into conflict with the law enforcement authorities' needs of data for crime investigation purposes."

In effect the Council is telling the European Commission (and the European Parliament) that the proposed Directive on the table has to be changed and that all existing EU data protection and privacy laws have to be reviewed. It is calling for an end to the obligation, under current EU law, of commerce to erase data and to end anonymity and to ensure that law enforcement agencies have the "opportunity" to access all data held.

The next legislative steps

The urgency on the part of the law enforcement agencies is due to the fact that the first proposal they want changed is the Commission's proposed Directive on personal data and privacy in electronic communications is already before European Parliament committees under the co-decision procedure - Citizens' Freedoms and Rights (lead committee), Environment, Industry and Legal Affairs. These committees are due to put a report to the parliament's plenary session on 3 September. However, the Council is likely to adopt a common position at the Telecommunications Council on 27 June. Co-decision means all three institutions (Commission, Council and European Parliament) have to agree on the new measure. The Council is trying to pre-empt the parliament's opinion by putting forward radical changes on the retention of content and traffic data.

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