EU: Data Retention proposal partly illegal, say Council and Commission lawyers

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The Legal Services of both the Council and Commission have argued that the controversial proposal for a Framework Decision on the retention of telephone and Internet data, proposed last April by the UK and several other Member States, is partly illegal. 

The Legal Services have confined themselves to examining the issue of whether part of the proposed Framework Decision falls within the scope of EC law (the 'first pillar', dealing with economic issues, among others) or within the scope of the 'third pillar' (Title VI of the TEU, dealing with criminal law and policing). Both Legal Services conclude that the provisions in the proposed Framework Decision dealing with the obligations on service providers to retain and collect data on the use of phones and the Internet would be illegal, because this issue should instead be addressed by EC 'internal market' legislation on the regulation of telecommunications. In fact, a controversial EC Directive of 2002 already addressed this issue, by leaving Member States a discretionary option to require telecoms service providers to retain data on public use of telephones and the Internet for use by the law enforcement agecnies. The proposed Framework Decision would go further by making it mandatory for Member States to impose such requirements on telecoms service providers and by laying down some detail on the precise obligations that must be imposed.

The practical impact of the two Legal Services' opinions, if they are accepted by the EU institutions and the Member States, is that the proposed Framework Decision will have to be amended to take out all provisions relating to the obligations of telecom service providers. These provisions will instead appear in a separate parallel proposal for a Directive, which the Commission has already said it will propose in the near future. The decision-making procedure for the Directive will be very different from that applying to the Framework Decision: it will have to be proposed by the Commission (rather than the Member States); the Council will vote by a 'qualified majority' (rather than unanimity); and the European Parliament will have equal powers with the Council (the Member States' ministers) over adoption of the legislation (rather than being consulted only). The EU's Court of Justice also will have much wider jurisdiction over the Directive than it will have over the Framework Decision.

Unfortunately, the two Legal Services failed to consider whether the proposed measures, whatever form they take, would infringe the right to privacy or not. As the prior Statewatch analysis of the proposed Framework Decision showed, the initial proposal suffered from profound and fundamental flaws. In light of these flaws, the initial proposal cannot be justified in light of the right to privacy guaranteed by the EU Charter of Fundamental Rights, the general principles of EU law, Article 8 of the European Convention on Human Rights, national constitutions and other international human rights treaties. But if the proposed Framework Decision is split into two measures as suggested by the legal services, the European Parliament will have the opportunity to show its concerns about the right to privacy and insist upon vetoing the proposed Directive or insisting upon fundamental changes to it, in order to ensure that this fundamental human right is protected.

This would also be an opportunity for the European Parliament to insist upon a proper initial impact assessment to examine whether the huge cost which the proposal would entail for an industry crucial to Europe's economic growth can be justified, in light of the less intrusive but more effective measures that could be taken to focus police investigations on persons who are reasonably suspected of involvement in serious crime - instead of mass surveillance of the entire society.

Tony Bunyan, Statewatch editor, comments:

"The proposal should be withdrawn as the law enforcement agencies have all the powers they need. If it goes ahead and the costs are bourne by the communications industry we will all end up having to pay to be placed under surveillance by the state!"

1. Council Legal Service Opinion (document: 7688/05, French., pdf)
2. European Commission's Legal Opinion (SEC(2005) 420, French, pdf)
3. Latest draft of the proposal: Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences including terrorism (document: 6566/05, pdf)
4. EU: Mandatory data retention national parliaments express concern and opposition
5. Statewatch analysis of data retention proposal
6. Statewatch analysis: Data protection or data retention? (pdf)

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