EU surveillance of communications - running news feature (updated 30.5.02)
European Parliament caves in on data retention


- The "unholy alliance" of the PSE/socialist group and the PPE/conservative group - who together have a large majority in the parliament - today, 30 May, joined forces with the Spanish Presidency of the EU and voted to accept the demands of EU governments and law enforcement agencies to place telecommunications under surveillance. The rapporteur (M Cappato), the ELDR (Liberals), Green/EFA group and the GUE (United Left) voted against.

In the decisive vote on the second part of amendment 46 (split vote on data retention) the result was 351 votes in favour (PPE, PSE UEN), 133 against (ELDR, Greens, GUE and TDI) with 13 abstentions (some PPE, PSE). see also: EP voting figures and analysis


On this issue no "compromise" is possible. Either MEPs vote in favour of maintaining the existing 1997 Directive which only allows traffic and location data to be kept for billing purposes (ie: for the benefit of customers) or they vote in favour of data being retained so that EU law enforcement agencies (police, customs, immigration and internal security agencies) can get ongoing access to it.


In an interview with Washington Internet Daily (28.5.02) an assistant, Fabriza Panzetti, to PSE (Socialist MEP) Elena Paciotti said that although they has opposed data retention a "compromise" was now necessary as the EU governments refused to delete the provision.

The rationale of the PSE (Socialist group) and PPE (conservative group) to try and "sell" the "compromise" negotiated in secret with the Council (the 15 EU governments) is that the amendment in their name to Article 15.1 (amending the 1997 EU Directive on privacy in telecommunications) is the best that can be achieved. The only "compromise" seems to be that these groups have "caved-in" to the demands of the Council and the EU's law enforcement agencies' - the Council has not had to "compromise" at all.

Letter from Elena Paciotti (PSE, socialist group MEP) defending the PSE groups about-turn (sent to the 40 signatories of the letter from the civil society Coalition against data retention on 28 May)

"Dear friends,

Concerning your open letter addressed to the President of the European Parliament and to all the Members of this House, let me tell you that I fully share many of the concerns you voice. It is exactly by keeping these concerns in mind that we have been working on the text of the amended directive for the past few months, in cooperation with European Data Protection authorities. We have been striving to have the proposed text amended, and the final proposal would appear to provide a few safeguards.

Indeed, it should be pointed out that the derogations referred to in the text are actually already provided for in the current wording of Article 14 of directive 97/66, and that only few EU countries have already passed legislation transposing that Article.

The current proposal is an improvement over both the text of the directive as it stands and the common position. The text of the compromise amendment - as accepted also by the EC Commission and Council - indicates that all restriction to the rights and obligations set out in the directive on the protection of privacy in the electronic communications sector must respect the principles set out by the European Court of human Rights, i.e.: that such measures must constitute "a necessary, appropriate and proportionate measure within a democratic society to safeguard national security ...". As to the possibility to retain traffic data, the compromise specifies that this can be decided only through "legislative measures" and is allowed only "for a limited period". In the end it affirms that "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".

Furthermore recital 11 says that all these measures shall be "in accordance with the European Convention of Human Rights and Fundamental Freedoms as interpreted by the rulings of the European Court of Human Rights.".

I am aware that this final proposal is not fully satisfactory, but a compromise solution seldom is. Additionally, this is a derogation - which is allowed as an exception on a local (national) basis. Like all derogations, it has to comply with very stringent, selective prerequisites. Based on these premises, I and my group are and have always been committed in ensuring that the European Parliament verifies, with the greatest care and in cooperation with Data Protection authorities, that the national transposition of this derogation is in line with the general principles I have just mentioned.

I'd also like to draw your attention to the fact that the core of this directive is the safeguard of the fundamental right to the protection of personal data in the internal market: on this I think it's essential to allow each citizen to choose whether his/her personal data can or cannot be freely treated and used by businesses. This fundamental right can be adequately guaranteed only by allowing all users to make this decision before their data are included in public directories or used for sending unsolicited e-mails.

I wish to thank you for your interest in the activity of the European Parliament; please rest assured that we are very keen on this issue and will keep the matter in the focus of our attention.

I look forward to your comments and remain

Yours sincerely
Elena Paciotti MEP (Shadow Rapporteur PSE group)"

Statewatch comments

1. On this issue no "compromise" is possible. Either MEPs vote in favour of maintaining the existing 1997 Directive which only allows traffic and location data to be kept for billing purposes (ie: for the benefit of customers) or they vote in favour of data being retained so that EU law enforcement agencies (police, customs, immigration and internal security agencies) can get access to it.

2. The references in the PSE/PPE amendment to the European Convention on Human Rights and to the general principles of Community law in Article 6 of the Treaty on European Union (TEU) are presented as constitutional safeguards. However, the inclusion of these references are simply "window-dressing" as the ECHR, the TEU and Community law apply automatically to any EU Directive and therefore gives no additional protections. Moreover, the European Court of Justice also automatically has a say in the interpretation of the Directive - cases on the national application of the Directive could go to both the European Court of Justice (Luxembourg) and the European Court of Human Rights (Strasbourg). This is why the Council is quite happy to agree to the inclusion of these references as they do not affect in any way their demand for data retention for law enforcement purposes.

3. This measure is not needed to combat terrorism or serious criminal investigations, these powers already exist under the 1997 Directive (as the Council's own Legal Service advised before Christmas).

4. The EU Data Protection Commissioner and the Article 29 Working Party on Data Protection have always been opposed to this measure.

5. The European Commission's original proposal was simply to introduce a number of uncontroversial changes to the 1997 Directive. It too was opposed to the measure to introduce data retention and only withdrew its opposition in December.

6. The fact that PSE/PPE amendment is acceptable to the Council and now the European Commission is irrelevant - it is the job of the European Parliament, where necessary, to stand out against the pressure from the other two Brussels-based institutions especially on an issue so fundamental to privacy and democratic standards.

7. To suggest that surveillance should be "appropriate and proportionate" is quite meaningless in reality. One has to assume that MEPs have been aware of the debate on the surveillance of telecommunication which has been going on since at least 1997: Discussions in G8 (attended by key EU states), ILETS (International Law Enforcement Telecommunications Seminar) and Council working parties have been discussing "limited periods" of between 12 months and seven years (renewable). Moreover, in the post-11 September period what is "appropriate and proportionate" is potentially limitless.

8. The PSE/PPE amendment is patently not an "improvement" on the current 1997 EU Directive.

9. The vague and general "safeguards" under the European Convention on Human Rights are meaningless too, if MEPs are concerned and serious that given the right to privacy Article in the ECHR then they would not even be contemplating backing such a measure. Moreover references to general principles such as adhering to the ECHR are empty if the new law itself allows the retention of data and access for the law enforcement agencies.

10. It is very hard to give any credence to the idea that the PSE group care about data protection, privacy or surveillance. They voted against data retention in the Committee on Citizens's Freedoms and Rights and in the November plenary last year and again in the Committee on 18 April but in the critical vote on Thursday 30 May they are intending to abandon their position and back the retention of data.

11. The net effect will be to fundamentally undermine data protection laws put into place so painstakingly during the 1990s. Moreover, if people become aware that all their communications are being held on record it will undermine confidence in e-mails and the internet. As the UK Home Office Assessment put in:

"A balance must therefore be drawn between security and privacy... Data relating to specific individuals under investigation will only be available if data relating to the communications of the entire population is retained"

12. The EU's Police Chiefs Operational Task Force want data to be retained and accessible for:

"research purposes"

that is, not in connection with any specific offence but in order to conduct "fishing expeditions" on individuals or groups.

13. In his letter to the EU institutions on 16 October one of George Bush's demands was that the EU introduce data retention - a power that does not exist in the USA even under the PATRIOT Act.

14. It might be expected too that MEPs are aware of the EU governments intentions on this issue. Since 1998 it has been clear that as far as they are concerned the surveillance of telecommunications only works if every EU state has the same laws and which operate in exactly the same way - this is why a number of EU governments are working on a draft Framework Decision which will be binding on every Member State. Thus the claim that data retention requires a derogation (ie: is non-binding) by each member state falls if all member states are committed to the same policy.

Tony Bunyan, Statewatch editor, comments:

"On this issue the majority of MEPs seem likely to end up on the side of their governments rather than on the side of the people and the democratic standards they are meant to protect.

To be told by the two largest groups in the European Parliament, the PSE and PPE, that the inclusion of references to the European Convention on Human Rights (ECHR) and EC Community law makes the EU governments' demand for data retention and the surveillance of telecommunications acceptable is sheer nonsense. The ECHR and Community law automatically apply to all EU Directives and therefore reference to them is simply "window-dressing".

To be told too that this "compromise" is the best that can be achieved - on an issue where no compromise is possible - because the three Brussels-based EU institutions are all in agreement simply tells us that they are not to be trusted with maintaining and protecting basic democratic freedoms and rights. It is to be hoped that each MEP will look to their conscience before they vote "



Responses by civil society groups to Ms. Paciotti (PSE MEP, socialist group) to her letter of 28 May 2002

Story filed 27.5.02
The amendment put forward by Ana Palacio (PPE, conservative group, Spain) has now been signed too by Elena Paciotti (PES, Socialist group, Italy) - the effect of the amendment to the EU Directive on privacy and telecommunications is to back the EU governments' demands for the retention of communications data and for access to it by law enforcement agencies.

With this amendment the EPP and now the PSE have abandoned the stance that the European Parliament had taken in first reading (November 2001) and confirmed at the second reading in the Committee on Citizens' Freedoms and Rights (18 April 2002) without getting any concessions whatsoever from the Council of the European Union (the 15 EU governments).

Tony Bunyan, Statewatch editor, comments:

"The EU governments already have all the powers they need under the existing Directive to combat terrorism, this measure has nothing to do with terrorism. The proposal by the EU governments is a cynical exploitation of public sentiment to introduce draconian powers to potentially place the whole population of Europe under surveillance.

It took years to agree and put in place the 1997 EU Directive on privacy in telecommunications in every member state. The right to privacy and freedom from surveillance once lost will be gone forever.

The European Parliament took a principled stand in November 2001 and on 18 April. Now it appears that the two largest parties - the EPP and PSE - may simply turn tail and accept the governments' demands. It is the job of the parliament to defend to the hilt citizens' freedoms and rights , it is to be hoped that each MEP will look to their conscience before they vote. "



Story filed 23.5.02
Today (23 May) the chair of the Committee on Citizens' Freedoms and Rights (Ana Palacio, EPP, conservative group, Spain) lodged a new amendment for the plenary session discussion (29 May) and vote (30 May) in the European Parliament on the critical Article 15.1. in the proposal to amend the 1997 EU Directive on privacy in telecommunications: Text of amendments: (
Word) (pdf)

The wording of the proposed amendment by Ana Palacio is virtually the same (two words have been transposed) as the one she proposed on 18 April which is "acceptable" to the Council of the European Union (the 15 EU governments) because it accepts their demands that network and service providers retain traffic and location data and that law enforcement agencies (police, customs, immigration and internal security agencies) have access to it:
European Parliament committee chair tries to reach a "deal" with the Council on the surveillance of communications

The EPP (conservative) group are also claiming that the PSE (Socialist group) are backing this so-called "compromise" amendment - as these two groups together form an outright majority it would lead to the European Parliament backing the "war on terrorism" demands of the governments as against the freedom, privacy and democratic rights of citizens.

Civil society's opposition to data surveillance

This potential "cave-in" by the European Parliament comes on the same day (23 May) that a coalition of 40 civil liberties groups urged MEPs to reject the idea of data retention: Coalition asks European Parliament to vote against data retention. The STOP1984 campaign has gathered more than 16,000 signatures from Internet users in 60 countries opposed to the data retention proposal now before the European Parliament: STOP 1984 campaign

Article 15.1 - the different positions

1. The Amendment (rapporteur: Marco Cappato) agreed by the Committee on Citizens's Freedoms and Rights on 18 April as its 2nd reading position, maintaining the 1st reading position agreed in November 2001 (amending the Council's common position under 4 below) reads as follows:

15.1. 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, proportionate and temporary measure within a democratic society to safeguard national security, defence, public security, 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. These measures shall be entirely exceptional and based on a specific law which is comprehensible to the general public, and shall be authorised by the judicial or other competent authorities on a case-by-case basis. Under the European Convention on Human Rights and the EU Charter of Fundamental Rights and pursuant to rulings issued by the European Court of Human Rights, any form of widespread general or exploratory electronic surveillance is prohibited.

2. The EPP/Ana Palacio amendment to the above on 18 April and rejected by the Committee on Citizens' Freedoms and Rights (amending the Council's common position under 4 below) reads as follows:

15.1. 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 measure to safeguard national security, (i.e. State security) defence, public security or the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system, as referred to in Article 13(1) of Directive 95/46/EC. To this end Member States may inter alia provide for the retention of data for a limited period justified on the grounds laid down in this paragraph, in accordance with the general principles of Community law, in particular the European Convention on Human Rights and pursuant to rulings issued by the European Court of Human Rights.

3. The EPP/Ana Palacio amendment put forward on 15 May "acceptable" to the Council (amending the Council's common position under 4 below) reads as follows:

15.1. 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, 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 included in this article 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.

3a. The new EPP/Ana Palacio amendment put forward on 23 May: which will also be "acceptable" to the Council (amending the Council's common position under 4 below) reads as follows:

15.1. 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 security, (ie: State security) defence, public security, 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 included in this article 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.

4. The Council's common position on data retention in Article 15.1, adopted 28 January, reads as follows:

15.1. 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 measure to safeguard national security, (i.e. State security) defence, public security or the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system, as referred to in Article 13(1) of Directive 95/46/EC. To this end Member States may inter alia provide for the retention of data for a limited period justified on the grounds laid down in this paragraph, in accordance with the general principles of Community law.

Comment: the Council's position is intended to deflect criticism by arguing that the proposal is non-binding and therefore up to each member state to enact. This ignores the evidence on the record that the Council's plans assume that every EU state allows the retention of data and allows access to this for the "law enforcement agencies".

Background

At the plenary session on 29-30 May in Brussels the European Parliament will be discussing a crucial amendment to the position on the retention of telecommunications data. The European Commission put forward a proposal on 12 July 2000 to introduce a number of non-controversial amendments to the 1997 EU Directive on privacy in the telecommunications sector. By early last year it became clear that the Council intended to use this opportunity to effect major changes to meet the long-standing demands of the EU's law enforcement agencies (police, customs, immigration and internal security agencies) for the retention of all traffic and location telecommunications data (phone-calls, e-mails, faxes and internet usage) and access to it.

In reaction to 11 September the Council decided that the issue of data retention - not to combat terrorism but crime in general - should be a priority.

In November 2001 the plenary session of the European Parliament adopted its 1st reading position which opposed the Council's demands. After the Council made its view known in December (it was formally adopted on 28 January) the European Commission caved in and withdrew its long-standing opposition. The proposal therefore returned to the parliament for a 2nd reading and on 18 April the Committee on Citizens Freedoms and Rights re-affirmed its opposition and maintained its previous view, see: the vote in the Committee on 18 April If the parliament maintains its position the issue will move into the co-decision process and a conciliation committee (involving the Council European Parliament and Commission) will be set up.

As Statewatch has revealed, a number of EU governments are working on a draft Framework Decision (under Article 34.2.b) to make it binding on all 15 EU states to implement a new law requiring public communications network or publicly available electronic communications service to retain traffic and location data - as soon as opposition in the European Parliament is overcome, see: Binding Framework Decision

Background - Statewatch News online

1. The vote in the European Parliament - voting figures by party and analysis:
Vote & analysis
2. European Parliament committee chair tries to reach a "deal" with the Council on the surveillance of communications:
Report
3. EU governments are secretly drafting a binding Framework Decision to introduce the universal surveillance of telecommunications (updated 9.5.02): Report
4. Vote in Committee:
Narrow vote in European Parliament on data retention
5. Statewatch summary:
European Commission sells out
6. Statewatch bulletin, January-February 2002:
Final decision on surveillance of telecommunications
7. Statewatch report, up to 11 September:
Data protection or data retention in the EU? (pdf)

Background - Statewatch Observatories on surveillance 

8. EU-FBI telecommunications surveillance system: EU-FBI
9. Statewatch Observatory on Surveillance in Europe:
S.O.S.Europe


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