EU governments' to decide on retention of telecommunications data (including internet usage) by law enforcement agencies

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The debate over the retention of telecommunications data by EU states for the purposes of giving access to the law enforcement agencies is reaching the crunch stage. At the Telecommunications Council in Brussels on 27-28 June the decision may be made to back demands by the UK and other governments for data to be retained for use by the agencies. The European Commission are strongly opposed to the changes as are a number of the rapporteurs in the European Parliament.

The chair of the EU's Article 29 Data Protection Working Party has sent letters to the President of the European Parliament, Mr Prodi of the Commission and the Council expressing its strong opposition to any changes in the draft measure: Letter from Rodota: full-text

The battle lines in the Council at the beginning of June showed the incoming Belgian Presidency and the current Swedish Presidency backed by the UK demanding changes - to the planned new EU Directive on personal data and the protection of privacy in the field of electronic commerce - to allow the retention of telecommunications data for law enforcement agencies. Opposing this move were Greece, Italy, Netherlands and the Commission.

At the Telecommunications Council on Wednesday it will be open to the Council (the 15 EU governments) to back the demand now fronted by the UK.

The new Directive, which is simply intended to update the current laws, has to be agreed under the co-decision procedure whereby the the Council, Commission and Parliament have to agree on the new measure.

The background is on the Statewatch Observatory on Surveillance in Europe: S.0.S. Europe


The latest available draft of the Council's discussions on its "common position" shows that the demands of the law enforcement agencies are centred to two key provisions in the draft new Directive: Article 6 on "Traffic data" and Article 15 which allows EU states to derogate from the provisions on an individual basis and allow law enforcement agencies access to traffic data (including internet usage). Draft dated 31 May (9337/01): Full-text (pdf file)

The first key provision, Article 6.1. on Traffic data reads as follows:

"1. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or service must be erased or made anonymous when it is no longer needed for the purpose [upon completion] of the transmission of a communication without prejudice to the provisions of paragraphs 2, 3, and Article 15, paragraph 1 4." (bold are changes proposed by the Council; the [] show deletions)

These changes were put forward by the Swedish Presidency of the EU. A number of EU governments and the Commission oppose the addition of the reference to Article 15. However, in a footnote there is an alternative wording put forward by Belgium, the incoming EU Presidency from 1 July. This reads as follows where "B" stands for Belgium:

" Alternative text proposed by B for Article 6, paragraph 1:

"Traffic data relating to subscribers and users processed for the purpose of the transmission of a communication and stored by the provider of a public communications network or service may upon completion of the transmission only be processed for legitimate purposes as determined by national law or applicable instruments. Within the scope of this directive, those purposes can be no other than those mentioned in paragraphs 2 and 3".

The effect of this proposal is to delete the provision that data should be erased or made anonymous and to insert another purpose (ie: other than for checking billing for customers) saying it can be "processed for legitimate purposes determined by national law" - in other words it would allo

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