EU data retention law blasted on privacy issues

Commission report fails to show the necessity of data retention say cilvil liberty groups

The European Union's data retention law has come under scrutiny, with a new report saying that it poses significant risks to individuals' right to privacy.

The European Commission published its report on the Data Retention Directive on Monday and concluded that "retained telecommunications data play an important role in the protection of the public against the harm caused by serious crime." However, transposing this directive into law has proved difficult in many E.U. member states and the resulting uneven playing field has created difficulties for telecommunications service providers.

Under the directive, telecom companies must retain the data necessary for identifying the source (sender), destination (recipient), date, time and duration, type, equipment and, for mobile telephony, the location of the equipment. This applies to e-mail as well as phone calls and text messages. This information must be available to be handed over to national police on a case-by-case basis.

However the text of the Data Retention Directive does not in itself guarantee that data is stored, retrieved and used in line with the right to privacy and protection of personal data, according to critics. As a result, courts in Germany, the Czech Republic and Romania, found that national laws transposing the rules were unconstitutional. The three countries are currently trying to work out how to comply with the directive while still maintaining privacy rights.

Austria and Sweden have also delayed implementation of the directive and have been brought before the European Court of Justice. Austrian authorities have recently drawn up drafts rules on implementing the law, but last month the Swedish Parliament deferred a vote on the proposed legislation for a further 12 months, leading to further court action by the Commission.

The European Data Protection Supervisor described the directive as "the most privacy-invasive instrument ever adopted by the European Union" and many civil liberties groups have hit out at it.

"European citizens, and Europe's hard-won credibility for defending fundamental rights, have paid dearly for this Directive, both in terms of a reduction in the right to privacy and also in the chaos and lawless treatment of personal data," said Joe McNamee, Advocacy Coordinator for digital rights group EDRi.

Several E.U. countries do not even have a process for deleting the data after the retention periods, he added. In 2010, the average European had his traffic and location data logged in a telecom database once every six minutes, according to EDRi. The data must be retained for a minimum of six months to a maximum of two years by the telecom companies and the legal procedures for accessing the data vary considerably from country to country.

Service providers have complained that this places a huge cost burden on them. A study carried out before the transposition of the directive estimated the cost of setting up a system for retaining data for an ISP to be around €375,000 ($US541,000) in the first year and about €10,000 in operational costs.

In light of this sustained controversy over the directive, the Commission launched a public consultation on the Data Retention Directive that closed in January. It will now review the rules, in consultation with the police and the judiciary, industry, data protection authorities, and private-sector representatives with a view to proposing an improved legal framework.

"Our evaluation shows the importance of stored telecommunications data for criminal justice systems and for law enforcement. But the evaluation report also identifies serious shortcomings. We need a more proportionate, common approach across the E.U. to this issue," acknowledged Home Affairs Commissioner, Cecilia Malmström.

For example, telecom operators are reimbursed differently across the E.U. for the cost of retaining and giving access to data, and the Commission will consider ways of providing more consistent reimbursement.

The volume of requests to access the data has been steadily rising, with around two million requests in in the 2008-2009 period. But there is a large variation between states, with just 100 requests made in Cyprus, compared to one million in Poland (though this includes identical requests sent to each of Poland's main mobile operators). The most frequently requested type of data overall concerns mobile telephony.

As information is not stored in police databases, law enforcement authorities must usually seek permission from a judge before accessing it. Despite this, critics of the law say that the Commission has repeatedly failed to prove that data retention is a necessary instrument to fight serious crime. And, they say, while there have been no concrete examples of serious breaches of privacy, data retention in itself implies a risk of a potential breach.

Follow Jennifer on Twitter at @BrusselsGeek or email tips and comments to jennifer_baker@idg.com.

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