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Criminologists: No "security gap" without blanket communications data retention (8 Feb 2012) Print E-mail

A recently released independent scientific study produced by the criminological department of the well-known German Max-Planck-Institute for Foreign and International Criminal Law finds that data retention does not result in an increase in the security of citizens.[1] Supporters of the 2006 EU policy of retaining telecommunications data without cause (data retention directive 2006/24) had so far argued that the absence of blanket data retention resulted in a „security gap“ for citizens. The German Working Group on Data Retention (AK Vorrat) now urges the EU to reconsider its position based on the recent findings. 

The study, commissioned by the German Federal Ministry of Justice, finds that data retention laws in Germany and Switzerland did not result in a higher clearance rate of serious crime. „Data retention is an instrument without any measurable effect on crime clearance rates which costs the tax-payer millions of euros“, states Katharina Nocun, member of the German Working Group against Data Retention. “The immaterial cost of data retention is an assault on the right to privacy and the elimination of the presumption of innocence. That is a high price we should never agree to pay - especially not for a measure that is ineffective.“

The German Working Group on Data Retention (AK Vorrat) and many other civil rights group see themselves confronted with a growing number of abuse cases concerning data retention. In view of these cases of abuse, it is obvious that data retention harms the freedom of the press and individual rights.[2]

Despite the existence of various scientific findings on the ineffectiveness of data retention, supporters of the notorious EU data retention directive still use untypical isolated cases and populist arguments in order to defend the highly criticized measure. „How can it be that the EU still maintains their plans to spy on their citizens on this incredible scale? There is no judicial or scientific proof - neither for the compatibility with fundamental rights nor for the effectiveness of data retention“, criticizes padeluun from the German Working Group on Data Retention. „A scientific evaluation should be the basis of any objective debate on indiscriminate communications data retention.“

The German Working Group on Data Retention urges 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 as agreed in the Council of Europe's Convention on Cybercrime.

Translation of key findings of the Max-Planck-Institute study:[1]

"9) Examining crime-specific clearance rates in the years of 1987-2010 one finds that the cessation of blanket data retention cannot be seen as a cause of changes in clearance rates. This is not surprising considering the large number of registered crime, which by far exceeds the number of requests for traffic data.

"10) Nor do clearance rates relating to computer crime or so-called Internet crime point to changes in clearance rate trends during the period of blanket data retention [in Germany].

"11) Considering specifically the year of 2008 when communications data retained without cause were generally available [in Germany], no change in clearance rates relating to data access can be observed in relation to any of the types of crime examined in this study, neither in comparison to the previous year nor to the consecutive years of 2009/2010.

"12) When comparing clearance rates in Germany and in Switzerland in 2009 one cannot find any evidence that the policy of blanket data retention (having been in place in Switzerland for 10 years) resulted in a systematically higher rate of crime clearance.

"13) Individual comparisons between Germany, Austria and Switzerland (which since 2008 had - at least temporarily - differing legal regimes of data retention in place) do not provide evidence of any measurable changes in security levels due to the systematic collection and retention of traffic data or the absence of such policy.

"14) Nor does the examination of additional information sources result in dependable evidence for any reduction in the means of protection due to the end of blanket data retention [in Germany]. [...]

"15) It is impossible to exclude with certainty that in complex investigation procedures and in relation to capital crime traffic data may represent important evidence or allow for additional investigation. Such cases, if they can be identified without doubt, are without relevance to the general trends however."

The Max-Planck-Institute study also blasts the EU Commission's 2011 "Evaluation report on the Data Retention Directive":[3]

"46) The European Commission's evaluation report assumes that the blanket retention of communications data significantly contributed to Europe's safety.

"47) The Commission's evaluation however was unsuited to address the policy of data retention as it did not differentiate between data retained under blanket retention policies and other communications data. The report contains data relating to communications data access in general only.

"48) The description of the usage of traffic data is based on data provided by one third of EU member states. Most member states could not even provide data on simple structures of access to traffic data.

"49) The statistics on access to communications data do not differentiate between subscriber data and traffic data, and between different types of access to data.

"50) The description of the usage of traffic data does not differentiate according to the kind and seriousness of crime that was investigated. The evaluation does not say whether and in how far data retained without cause or communications traffic data in general are relevant to investigations of serious crime specifically.

"51) None of the statistics provided by EU member states are conclusive as to whether and to what degree (general) traffic data have contributed to the clearance of crime (or not).

"52) The little information and case reports provided beyond statistics are mostly not verifiable and therefore unsuitable for an evaluation."

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