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EU: Mandatory data retention - national parliaments express concern and opposition

28 March 2012

The Justice and Home Affairs Council is currently discussing a proposal the on mandatory data retention of all telecommunications (phone calls, e-mails, faxes, mobile calls and internet usage).

EDRI reports that: The German Lower House committee on Justice and Home Affairs has unanimously adopted a draft-motion on 1 December 2004 forbidding the German government to support a decision in any EU body that would oblige companies in Germany to store traffic data "with reservation to the presentation of appropriate legal justification."

EDRI-member IRIS adds that France has never published a decree stipulating mandatory data retention, but has been working on it since 15 November 2001. Though a French official announced on 21 September in a Commission workshop that the publication was 'imminent', it has not surfaced yet. It is widely expected to include web-surfing, data most providers can only obtain by sniffing their entire network. That means putting a wiretap on every customer and distilling the necessary data from this unwholesome amount of data.

According to an urgent open letter from 160 Dutch internet providers (including all the major European ISPs such as Tiscali, UPC and Wanadoo) to Parliament, an ordinary broadband provider with 100.000 customers transports 5.5 terabyte data per day, or 8.500 CD's. To sniff all those connections and distil traffic data from it, is technically impossible, they claim.

In full support of the open letter, the Dutch judicial committee asked the Justice Minister, Donner, to provide proof of the necessity, proportionality and costs of the obligation, before adopting any official Dutch position. Minister Donner said he would write a letter to Parliament in January, answering some of these questions, but said it wasn't possible for parliament or internet-providers "to frustrate the European decision making process", since the Netherlands were 'only accommodating this process as chairman of the EU.'

Pressured to give examples of the necessity of data retention for law enforcement, Donner admitted he had not told the 'full truth' to Parliament in the previous meeting when he pointed to 'the success of mandatory data retention in the UK'. He now acknowledged there was no legal obligation to retain data in the UK, only a self-regulatory code to which many providers don't comply. He admitted he only "talked to English law enforcement officials who said mandatory data retention was a very good idea."

The European Commission has not yet published its opinion on mandatory data retention, an opinion that was due on 19 November, the date of the previous JHA Council. The Council has now asked the Commission to provide specific input on the issue of 'regular' or 'extended' data retention.

Bundestag will Datenschutzreform anmahnen (01.12.2004)
Open letter 160 Dutch ISPs (in Dutch, 29.11.2004)
PI/EDRI statement, endorsed by 90 civil rights organisations (15.09.2004)

Source: EDRI-gram, biweekly newsletter about digital civil rights in Europe. Number 2.23, 2 December 2004. EDRI and its members:

For background see Statewatch database results: Data retention and Statewatch's Observatory EU-FBI - Telecommunications surveillance plan