28 March 2012
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issues statement on data retention
- statement does nothing to refute the existence of a binding draft Framework Decision
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 be at this stage of decision-making it is "under the table" waiting for the right time to be produced. A questionnaire on data retention is out for Member States responses by 9 September and the Multidisciplinary Group on Organised Crime meets in Brussels on 16 September. This Group will first agree the non-binding "Conclusions" proposed by the Danish Presidency, which call for binding rules on data retention, before considering a binding Framework Decision.
Is the Danish Presidency really trying to say that the EU has no intention of introducing binding rules on data retention for telecommunications providers, access for the law enforcement agencies and the exchange of requests between EU agencies?"
Based on a report from the organisation Statewatch, there has over the past few days been rumours in certain parts of European press of imminent EU-rules on the retention of telecommunication traffic data and the access to such data.
In this connection it has been suggested that the Danish Presidency of the European Union has tabled a proposal for binding rules on such retention, rules that would imply that telecommunication providers would be placed under an obligation to store traffic data for up to two years, that such traffic data would be collected in central databases, and that stored information should be made available to all Member States.
These rumours are based on fundamental misunderstandings, that could have been avoided, in case the media concerned had contacted the Danish Presidency in advance.
In June 2002 the Danish presidency tabled a proposal for Council conclusions on information technology-related measures concerning the investigation and prosecution of organised crime.
The proposal that was made available on the Council website (ue.eu.int) in July contains a request that within the very near future binding rules should be established on the approximation of Member States' rules on the obligation of telecommunications services providers to keep information concerning telecommunications in order to ensure that such information is available when it is of significance for a criminal investigation
The proposal contains no detailed indications as to what the contents of such rules should be, but emphasises that such regulation must be established taking account of the requirements regarding privacy and the processing of personal data which stem from the European Convention on Human Rights of 4 November 1950, the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
The proposal is currently under consideration in the relevant Council expert group and is not likely to be ready for adoption before November 2002 at the earliest.
There are no further proposals on the table regarding retention of traffic data, and the Danish Presidency is not engaged in drafting any such proposals.
link to Danish Presidency site: http://www.eu2002.dk
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