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EU governments to back demands of the law enforcement agencies for access to all communications data

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01 March 2001

"The only effective national legislative measure would... be to prohibit the erasure or anonymity of traffic data" [EU Working Party on Police Cooperation]< br >< br >< br >< br >The new initiative by the EU governments to back the demands of their law enforcement agencies (LEAs) only came to light when Statewatch “acquired” a series of EU documents which it had been refused access to. The documents in question were refused on the grounds that: < br >< br >the matter was still under discussion..[and] disclosure of this document could impede the efficiency of the ongoing deliberations.< br >< br >The demand of the law enforcement agencies centre on the issue of “data retention”, that is the recording and storage of all telecommunications data:< br >< br >- every phone call, every mobile phone call, every fax, every e-mail, every website's contents, all internet usage, from anywhere, by everyone, to be recorded, archived and be accessible for at least seven years< br >< br >The move by the EU governments (the Council of the European Union) has been sparked by a draft proposal put forward by the European Commission on “the processing of personal data and the protection of privacy in the electronic communications sector” (COM(2000)385 final, 12.7.00). The proposal would update Directive 97/55/EC but is not “intended to create major changes to the substance of the existing Directive”, merely to “update the existing provisions”. The proposal thus builds on the principles of the 1997 law and data protection rules established in EU community law. < br >< br > Also under discussion is a related Communication from the Commission on “Creating a Safer Information Society by improving the security of information infrastructures and combating computer-related crime (COM(2000)890 final) (see Statewatch, vol 11 no 1). Here the Commission, in line with community law, emphasises that: “interceptions are illegal unless they are authorised by law when necessary in specific cases for limited purposes”. < br >< br >< br >< br >The EU-FBI surveillance plan comes home< br >< br >The EU adopted the “Requirements” developed by the FBI on 17 January 1995 - the “Requirements” set out demands on network and service providers to provide the law enforcement agencies with both data from intercepted communications and real-time access to transmissions (see Statewatch, vol 7 no 1 & 4 and 5; vol 8 no 5 & 6; vol 9 no 6; vol 11 no 1).< br >< br > In September 1998 the EU's Police Cooperation Working Party proposed that the “Requirements” be extended to cope with internet and satellite phone telecommunications. The initial report (ENFOPOL 98) went through several drafts and ended up as ENFOPOL 19 (15 March 1999) which gathered dust. It transpired that because of the “negative press” surrounding ENFOPOL 98, which coincided with exposures on the ECHELON spying system, there was a lack of “political support” to move forward on the issue (report on the Police Cooperation Working Party meeting on 13-14 October 1999 by the European Commission).< br >< br > In the spring of 2000 the EU's Police Cooperation Working Party decided that issues previously discussed under the title of “interception of telecommunications” would now be called “advanced technologies”. A report by the same working party (ENFOPOL 52, 12 July 2000) spelled out that “an informal inter-pillar link” should be created between their work and that being carried out under the “first pillar” on the “global Information Society”. The purpose was to bring to the attention of the Telecommunications Council and the Internal Market Council, working on technical and commercial decisions, the need to: “safeguard the possibility of lawful interception”.< br >< br > On 29 May 2000 the Convention on Mutual Assistance in criminal matters was agreed by EU Justice and Home Affairs Council and is now out for ratification by each of the 15 EU national parliaments. This includes provisions for the interception and exchange of telecommunications data based on specific requests but makes no provision for the retention of data (except in individual,