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86 cents for one year without blanket telecommunications data retention (25 Jul 2011) Print E-mail

+++ Civil liberties campaigners call on German government to stop EU data retention infringement proceedings +++

In June, the European Commission initiated infringement proceedings against Germany for having failed to transpose the controversial EU data retention directive. This directive requires the blanket and indiscriminate collection of telephone records, and mobile phone location and Internet data which reveal sensitive information about the movements and social contacts of 500 million Europeans not suspected of any wrongdoing; this includes business contacts and communications with physicians, lawyers, worker's councils, therapists and helplines.

Civil liberties advocates, data protection activists and Internet users collaborating in the German NGO Working Group on Data Retention (AK Vorrat) are urging the German government, and Liberal Democrats in particular, to resist the Commission's pressure to transpose the illegal data retention directive. It is self-contradictory for the Commission to stress the importance of a fundamental revision of this directive and, at the same time, try to force Member States to transpose the old, failed directive.

The federal government should stop the infringement proceedings by applying to be exempted from the directive under Article 114 (4) of the Treaty on the Functioning of the European Union, to safeguard civil liberties. Although the New Association of German Magistrates and Public Prosecutors pointed out this option in January,[1] the German government has not yet seized this opportunity.

Since the EU Court of Justice is currently dealing with approximately 20 infringement proceedings against Germany,[2] politicians cannot claim that one more proceeding must be avoided at any cost. Transposing the failed EU data retention directive would violate the European Convention on Human Rights and the EU Fundamental Rights Charter, as confirmed by the Romanian Constitutional Court,[3] the Centre for European Policy[4] and the Scientific Services of the German Parliament.[5] In view of the conflict of obligations under an EU directive and the European Convention on Human Rights, fundamental rights must prevail until the data retention directive is either repealed or annulled by the Court of Justice.

Some German politicians are currently proposing partial transposition of the data retention directive (e.g. a retention period of three months or Internet data retention only). Such partial compliance would be the worst of all choices. Our fundamental right to privacy would be violated and the secrecy of our communications put at risk. A German data retention law would persist even after the EU directive is annulled. But partial transposition would not stop the infringement proceedings.

The government should instead consider introducing a data preservation order like the one Canada[6] and Australia[7] have recently introduced. Data preservation means that only communications data needed for a specific criminal investigation is collected, rather than gathering information in a disproportionate fashion on the entire population.

The EU Court of Justice usually takes a year to pass judgment in infringement cases. We expect that by 2012, the Directive will have been annulled by the Court upon referral by the Irish High Court,[8] so that either no fine will be imposed on Germany or any fine paid will be refunded.

According to the assessment of the Working Group on Data Retention, Germany could expect a fine of no more than 86 cents a year per citizen. "Paying this fine is a good investment because only deleted data about our daily contacts, movements and interests is safe from abuse (as happened at Deutsche Telekom[9]), and will prevent unjustified suspicion by law enforcement agencies (such as the Dresden police[10])", explains AK Vorrat member Patrick Breyer. "Requiring blanket retention of communications data would cost business and consumers many times the amount of this fine."

"It would be a poor show if genuinely private communications via telephone, mobile phone, e-mail and Internet were not worth 86 cents per citizen to the federal government", comments AK Vorrat member Kai-Uwe Steffens. "Using fines to argue for blanket data retention amounts to expecting citizens to sell our right to privacy. Human rights, however, are inalienable according to the first article of our constitution."


According to the European data protection supervisor, the data retention directive constitutes "the most privacy invasive instrument ever adopted by the EU".[11] It is also the most controversial European surveillance instrument to date and has triggered protests throughout Europe.[12] After the data retention directive was adopted in early 2006, several European Constitutional Courts either rejected the principle of blanket and indiscriminate telecommunications data retention out of hand or firmly rejected implemented national legislation. The German Constitutional Court was petitioned by more than 34,000 citizens and annulled the German data retention law in 2010 for violating the fundamental right to telecommunications secrecy.[13] In 2011, more than 60,000 Germans signed a petition asking the Federal Government to forgo transposition of the data retention directive, arguing that blanket and indiscriminate retention of all telecommunications data "undermines our right to a self-determined and private life".[14]

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