The battle shifts to trying to undermine EU privacy
01 January 2001
"The only effective national legislative measure would... be to prohibit the erasure or anonymity of traffic data" [EU Working Party on Police Cooperation]
The debate over the surveillance of telecommunications in the EU has shifted from the "third pillar" (justice and home affairs/law enforcement agencies) to the "first pillar" (community law/industry). At issue is the length of time service and network providers have to keep data on all telecommunications (e-mails and internet usage). EU community law requires providers to retain data only for purposes of billing and then to erase it. The law enforcement agencies (police, customs, immigration and internal security services) want all communications to be kept for at least 7 years (see Statewatch vol 10 no 6).
The shift from the "third" to the "first" pillar
When ENFOPOL 98 was produced in September 1998 it was followed by extensive criticism in the media for wanting to extend the EU-FBI "Requirements" for the surveillance of telecommunications to e-mails and the internet. The final version of this document, ENFOPOL 19, was never adopted by the Council of the European Union (the governments) because of the "negative press" reaction (see Statewatch, vol 10 nos 2 & 3/4).
In the spring of 2000 the EU's Working Party on police cooperation decided that issues previously discussed under "interception of telecommunications" will now come under "advanced technologies". In July 2000 a document from the same working party entitled "Advanced technologies: relations between the first and third pillars" said there needed to be an "inter-pillar dialogue" over the "Information Society" (an over-arching EU term referring to e-mails and the internet).
From then the debate shifted with EU law enforcement agencies and EU working parties seeking to change, and if possible remove, the protection given to individuals under existing EU laws on data protection and privacy and proposed new Regulations on privacy and rules for the industry. Current, and planned, EU laws protecting individual rights are seen by the EU's law enforcement community as standing in their way.
The protection of privacy
The European Commission has put forward a proposal to update the 1997 Directive on the protection of privacy in the telecommunications sector (97/66/EC) which has only been in force for a couple of years. The proposed revision is primarily intended to update the 1997 Directive to allow for "new and foreseeable developments in electronic communications and services and technologies" (COM(2000)385 final).
It includes proposals to allow (Article 15) derogations (under Article 9) to restrict the scope of rights and obligations where national security, criminal investigations and "unauthorised use of electronic communications system(s)" are concerned.
As background to its proposal the Commission has put out a Communication on "Creating a Safer Information Society by improving the security of information infrastructures and combating computer-related crime". This report notes the ongoing work on the much-criticised draft Council of Europe Convention on cybercrime (see Statewatch, vol 10 no 6) and says that: "EU approximation could go further than the CoE Convention, which will represent a minimum of international approximation." (p15)
In a section on legal issues the report says that at present:
Interceptions are illegal unless they are authorised by law when necessary in specific cases for limited purposes.(p16)
At present legislation in EU member states requires that interception by law enforcement agencies is authorised by a judicial order or by a senior Minister. This legislation, the report says, has to be in line with Community law and provide:
safeguards for the protection of the individual's fundamental right of privacy, such as limiting the use of interception to investigations of serious crimes, requiring that interception in individual investigations should be necessary<