EU Presidency issues statement on data retention

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The Danish Presidency has issued a statement trying to deny moves to introduce data retention and rules for exchanging data between EU member states. See: EU: data retention to be "compulsory" for 12-24 months - draft Framework Decision leaked to Statewatch (analysis and full-text: pdf file) and Danish Presidency statement below.

The Danish Presidency does not deny the existence of the draft Framework Decision on data retention prepared by the Belgian government. The document obtained by Statewatch is eight pages long with "Confidential" stamped on the top and bottom of each page and headed: "Belgian proposal for Third Pillar legislation: Draft Framework Decision on the retention of traffic data and on access to this data in connection with criminal investigations and prosecutions" (see full-text)

It is not unusual for EU governments to prepare draft Framework Decisions under Article 34.2.b. of Title VI of the TEU. Since the Amsterdam Treaty came into effect in May 1999 nine Framework Decisions have been adopted and twelve are on the table, 11 out of 23 have been proposed by individual Member States.

In this case the Belgian government picked up the issue under its Presidency of the EU (July-December 2001). Conclusion no 4 of the special meeting of the Justice and Home Affairs Ministers on 20 September stated that law enforcement agencies must have access to communications data for the purpose of criminal investigations. This was a declaration by the Council that they intend to get through fundamental changes to the 1997 EC Directive on privacy in the telecommunications sector - to require that traffic data is retained (not erased) and allowing member states to legislate for access to this data by law enforcement agencies. In December the European Commission agreed, in May the European Parliament agreed and in June an amended Directive was formally adopted, see: EP vote.

It had been clear since 1996 that the EU's law enforcement agencies (police, customs, immigration and internal security agencies) wanted access to communications traffic data and that this had to cover all EU member states (and applicant countries under the justice and home affairs acquis). The agencies argued that there could not be a situation where countries A and C allowed access but country B did not - this would break the chain of an investigation.

So while the European Parliament was debating changes to the 1997 Directive the Belgian government was quietly drafting a binding Framework Decision which it circulated on a confidential basis to a number of governments for comment (including the UK). However, the picture across the EU varied, some member states had data retention for one year, others for five (Italy), some were well advanced into talks with the communications industry, others just starting. To advance the issue the incoming Danish Presidency put out a set of non-binding "Conclusions" on 24 June, see: 10358/02 These include a Conclusion that "within the very near future, binding rules should be established" (no 9). To back this up the Danish Presidency circulated a "Questionnaire on traffic data retention" on 14 August: 11490 REV 1 (pdf).

Tony Bunyan, Statewatch editor, comments:

"All the Danish Presidency statement says is that the draft Framework Decision on data retention and access by law enforcement agencies to traffic data was not drafted by the Danish government which is pretty obvious as it was drafted by the Belgian government,.

They do not deny its existence, they simply say it is not "on the table". Nor would it

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