Interception of telecommunications in the EU - update

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The European Voice newspaper reports that President Bush has written to Guy Verhofstadt, the Belgian Prime Minister who currently holds the Presidency of the EU, asking for the proposed EU directive on privacy and telecommunications being discussed in the European Parliament and the Council to be changed to allow for interception for criminal investigations. The US, says the letter, is against the provision in existing EU law that data can only be retained for the purposes of checking a customer's bill and for no other purpose.

A US official is quoted as saying that: "This is not an US-EU issue, it is more a question of law enforcement versus a strict interpretation of civil liberties".

The US is adding its voice to those of the EU law enforcement agencies and the UK government, which have been demanding the end to the protections given by the 1995 and 1997 EU Directives to citizens from general surveillance of telecommunications (e-mails, faxes, phone-calls and internet usage).

Discussions in the Council of the European Union

In a report presented to COREPER (the high-level committee of permanent representatives of EU governments based in Brussels) on 12 October the Council's Legal Service says that EU governments already have all the powers they need. It says that under the existing directive on privacy and telecommunications (1997) Eu states can make arrangements to intercept telecommunications to combat terrorism - it thus argues that there is no need for changes to the draft which would extend these powers to cover criminal investigations in general.

In its "Conclusions" 20 September the Justice and Home Affairs Council urges the EU institutions to keep under review the potential implications of the legislation being prepared for the fight against terrorism and crime. Under this heading, the Council undertook to "pay particular attention to the need to strike a balance between the need to protect personal data and the requirements of law enforcement authorities in the case of access to information for criminal investigations."

The Council Legal Service reports says that Article 15 (1) gives governments the powers they need to combat terrorism but that any measures adopted under this Article must be: i) be necessary; ii) cater for pressing needs; iii) remain proportionate to the legitimate goal being pursued; iv) include legal guarantees provided to individuals so as to prevent and penalise arbitrary interference.

However, it is unlikely that the EU member states, for example the UK, who have been pushing for months for a general law for the retention of all data and for law enforcement agencies to have access to it will accept this limited power.

Discussion in the European Parliament

On 11 July the European Parliament's Committee on Citizens Freedoms and Rights adopted a report on the new Directive by 22 votes to 12 with 5 abstentions. A mixed alliance: the PPE (conservative group), ELDR (Liberal group), some PSE (Socialist group) and Turco and Cappato (Italian Radicals) voted in favour, the majority of the PSE (Socialist group) voted against with the GUE (United Left) and the Green/EFA groups abstaining.

The critical amendments in the report are to Recital 10 and to Article 15. Article 15 allows member states on an individual basis to restrict the limits of the Directive for national security and the prevention, investigation, detection and prosecution of crime. The parliament's amendment would add the following:

"These measures must be entirely exceptional, based on a specific law which is comprehensible to the general public and be authorised by the judicial or competent authorities for individual cases. Under the European Convention on Human Rights and pursuant to rulings issued by the Court of Human Rights, any form of wide-scale general or exploratory electronic surveillance is prohibited".

There was much discussion not around data retention but around unsolicited e-mails and fax

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