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German Minister wants to end EU-wide communications data retention (11 Nov 2010) Print E-mail

German Minister of Justice Sabine Leutheusser-Schnarrenberger has informed us this week that she supports our position that if the EU Commission wants to uphold the policy of mandatory retention of all call records ("data retention") at all, the EU must at least leave it to national parliaments and constitutional courts to decide whether they wish to implement this policy or not. More than 100 organisations from 23 European countries are currently lobbying the EU Commission to "propose the repeal of the EU requirements regarding data retention in favour of a system of expedited preservation and targeted collection of traffic data".[1] "I am permanently in touch with the EU Commission and will take your arguments into account in our upcoming discussions", Leutheusser-Schnarrenberger assured us.

Tuesday the EU Court of Justice in Luxembourg ruled that "limitations in relation to the protection of personal data must apply only in so far as is strictly necessary". It ruled "invalid" EU requirements to publish every recipient of agricultural subsidies in the EU, deciding that this indiscriminate policy "exceeded the limits which compliance with the principle of proportionality imposes". "[I]t is possible to envisage measures which affect less adversely that fundamental right of natural persons and which still contribute effectively to the objectives of the European Union rules in question", the Court held.[2]

"The EU must now also abandon the disproportionate practise of indiscriminate retention of records on any communication, lest the EU Court of Justice rule the EU data retention directive invalid, too", comments Patrick Breyer of the Working Group on Data Retention. "The targeted preservation of suspect data is much less invasive and still contributes effectively to the prosecution of crime. The practise of most states world-wide demonstrates that EU rules stipulating the indiscriminate retention of records on any phone call, mobile phone location and Internet connection in the EU are not 'strictly necessary', but violate our right to respect for our private lives as guaranteed in the EU Charter of Fundamental Rights. It is not only the EU Court of Justice but also national constitutional courts[3] and the European Court of Human Rights[4] that have in the past ruled invalid indiscriminate intrusions into the personal lives of innocent citizens." Six EU member states have refused to transpose the controversial 2006 EU data retention directive; in two more EU Member States constitutional courts have annulled data retention laws, finding them incompatible with fundamental rights.

Last week the Canadian Government distanced itself from the controversial EU data retention policy. It announced plans to "create a preservation order that would require a telecommunication service provider to safeguard and not delete its data related to a specific communication or a subscriber when police believe the data will assist in an investigation." "This is not data retention", the Department of Justice pointed out. Preservation orders would be "restricted to the data that would assist in a specific investigation."[5]

The German Minister of the Interior Thomas de Maizière has in the past dismissed the internationally accepted procedure of data preservation, arguing that "there is nothing to preserve if no data is being stored".[6] Michael Ebeling of the Working Group on Data Retention counters: "There is nothing to abuse if no data is being stored. Data piles make abuses, as seen at Deutsche Telekom,[7] and criminal data trade, as seen at T-Mobile,[8] possible. Only erased data is safe data. Many states throughout the world prosecute crime effectively using targeted instruments - the proponents of blanket retention do certainly not mean to say that states like Austria, Sweden or Canada fail to prosecute crime effectively?"

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