EU Data Commisioners reject data retention proposals

[Richard Clayton]

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FIPR press release welcoming their statement

        http://www.fipr.org/press/020916Commissioners.html

The statement itself was released, rather quietly, on 11 September 2002

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Statement of the European Data Protection Commissioners at the
International Conference in Cardiff (9-11 September 2002) on mandatory
systematic retention of telecommunication traffic data.

The European Data Protection Commissioners have noted with concern that
in the third pillar of the EU, proposals are considered which would
result in the mandatory systematic retention of traffic data concerning
all kinds of telecommunication (i.e. details about time, place and
numbers used for phone, fax, e-mail and other use of the internet) for a
period of one year or more, in order to permit possible access by law
enforcement and security bodies. 

The European Data Protection Commissioners have grave doubt as to the
legitimacy and legality of such broad measures. They also want to draw
attention to the excessive costs that would be involved for the
telecommunication and internet industry, as well as to the absence of
such measures in the United States. 

The European Data Protection Commissioners have repeatedly emphasized
that such retention would be an improper invasion of the fundamental
rights guaranteed to individuals by Article 8 of the European Convention
on Human Rights, as further elaborated by the European Court of Human
Rights (see Opinion 4/2001 of the Article 29 Working Party established
by Directive 95/46/EC, and Declaration of Stockholm, April 2000). 

The protection of telecommunication traffic data is now also provided by
Directive 2002/58/EC of the European Parliament and Council concerning
privacy and electronic communications (Official Journal L 201/37), under
which processing of traffic data is in principle allowed for billing and
interconnection payments. After lengthy and explicit debate, retention
of traffic data for purposes of law enforcement should meet strict
conditions under Article 15(1) of the Directive: i.e. in each case only
for a limited period and where necessary, appropriate and proportionate
in a democratic society. 

Where traffic data are to be retained in specific cases, there must
therefore be a demonstrable need, the period of retention must be as
short as possible and the practice must be clearly regulated by law, in
a way that provides sufficient safeguards against unlawful access and
any other abuse. Systematic retention of all kinds of traffic data for a
period of one year or more would be clearly disproportionate and
therefore unacceptable in any case.

The European Data Protection Commissioners expect that the Article 29
Working Party will be consulted on measures that may emerge from the
third pillar discussions before they are adopted. 

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richard                                              Richard Clayton

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