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Action group calls for ban on telecommunications data retention in the EU (18 Apr 2011) Print E-mail

The EU Commission will present its report evaluating the data retention directive today.[1] The civil liberties and data protection activists as well as internet users united in the German civil liberties NGO "Working Group on Data Retention" (AK Vorrat) comment on the report as follows: 

 The EU data retention directive creates an obligation to record traffic, location and internet data of all 500 mio. Europeans in the absence of any suspicion. Blanket and indiscriminate telecommunications data retention is the most privacy invasive instrument and the least popular surveillance measure ever adopted by the EU. Although introduced after the Madrid and London terrorist bombings, these attacks - like other terrorist attacks - have been investigated and prosecuted without resorting to blanket retention legislation. EU Home Affairs Commissioner and now surveillance proponent Cecilia "Censilia" Malmström herself rejected the concept of data retention in 2005 with the following words: "I have so far not been convinced by the arguments for developing extensive systems for storing data, telephone conversations, e-mails and text messages. Developing these would be a very major encroachment on privacy, with a high risk of the systems being abused in many ways. The fact is that most of us, after all, are not criminals."[2]

In today's report[3] the Commissioner admits to mistakes and risks of blanket telecommunications data retention but avoids to draw the only credible conclusion which is to give up the concept of indiscriminate data retention without cause. The Commission's report is a political document rather than the result of an independent and scientifically sound analysis that would deserve the name of "evaluation". The statistics and anecdotes cited by the Commission do not demonstrate that blanket retention of communications data without cause was necessary. The EU has yet to realise that blanket data retention has not increased the crime clearance rate nor decreased the number of committed offences in any EU member state.

In view of the inadequate evaluation report we have today published supplementary evidence and facts that have been omitted in the official report.[4] This evidence can be summarised as follows:

Blanket and indiscriminate telecommunications data retention has proven harmful to many sectors of society. It disrupts confidential communications in areas that legitimately require non-traceability (e.g. contacts with psychotherapists, physicians, lawyers, workers councils, marriage counsellors, drug abuse counsellors, helplines), thus endangering the physical and mental health of people in need of help as well as of people around them. The inability of journalists to electronically receive information through untraceable channels compromises the freedom of the press, which damages preconditions of our open and democratic society. Retained communications data retention have repeatedly been abused and lost, resulting in the unauthorised disclosure of confidential information on private and business contacts, movements and activities. Communications data have also proven to be particularly susceptible to producing unjustified suspicions, thus subjecting innocent citizens to criminal investigation.

There are several alternative options to prevent market distortions without mandating blanket data retention throughout the EU (e.g. by prohibiting national data retention legislation or by making full cost reimbursement compulsory where national data retention legislation exists).

Blanket and indiscriminate telecommunications data retention has proven superfluous for the detection, investigation and prosecution of serious crime. Although retained communications data is occasionally useful for those purposes, there is no evidence that such benefits depend specifically on blanket data retention legislation. On the contrary, crime statistics reveal that there is not a single EU Member State where blanket and indiscriminate telecommunications data retention has had a statistically significant impact on crime or crime clearance. Crime statistics prove that several states in and beyond Europe (e.g. Austria, the Czech Republic, Germany, Romania, Sweden, Canada) prosecute crime just as effectively by using targeted instruments, such as recording data that is needed for a specific criminal investigation only ("data preservation"). The Commission's evaluation report completely fails to analyse the effectiveness of law enforcement in states that have not transposed the data retention directive.

Blanket and indiscriminate telecommunications data retention has proven to violate fundamental rights, unable to stand its ground against court challenges. In view of the scale of damage done to fundamental rights by data retention and the lack of evidence for a statistically significant impact on crime or the prosecution of crime, the concept of indiscriminately collecting information on the daily communications of every single citizen has been ruled disproportionate and incompatible with the European Convention on Human Rights. We expect the EU Court of Justice to annul the Data Retention Directive in 2012 for violating the EU Charter of Fundamental Rights, having regard to the fact that alternative measures are available which are consistent with the Directive's legal objective of "safeguarding the proper functioning of the internal market" while at the same time causing far less interference with innocent citizens' right to respect for their private life.

In conclusion, the EU must immediately stop its failed experiment and abandon the excessive retention of information on the communications of 500 mio. Europeans in favour of a system of expedited preservation and targeted collection of traffic data that is needed for a specific investigation. The EU Commission should propose outlawing national data retention legislation and target suspects of serious crime instead of placing all 500 million EU citizens under general suspicion. For as long as the EU Court of Justice and the European Court of Human Rights have not yet ruled on pending complaints against data retention legislation, the Commission must not fine or threaten to fine Member States that refuse to (re)enact such legislation for reason of their citizen's fundamental rights and freedoms.

More Information:

AK Vorrat background information and facts concerning the evaluation:

Official evaluation report (draft):

Shadow report by European Digital Rights:

Image "Censilia 2.0" for free use:

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