[Blog] Commission: Data retention too sensitive to be publicly debated (17 Feb 2012)

In the context of the revision of the controversial EU Data Retention Directive, the EU Commission's Legal Service has written an opinion on the possibility to render the application of the Data Retention Directive optional to Member States. However the Commission is refusing to disclose it due to the "highly sensitive nature" of the public debate on the controversial policy of blanket communications data retention.

The Commission today refused to disclose the legal opinion on the future of the controversial EU policy to retain information on all EU citizens communications and movements without cause. The secret opinion Ares(2010)828204 is described as follows:

"This legal opinion analyses the issues of the possibility to render the application of the Data Retention Directive optional to Member States (MS) and the consequences of such a different treatment between MS as well as the question of the legal basis on which future instruments on data retention should be adopted."

The Commission acklowleges that "the question of the data retention is of a highly sensitive nature" due to its "impact on the rights to privacy and the protection of personal data". However, the Commission is afraid that "external interferences" as a result of publication of the document would "seriously undermine" its decision-making process "in this area of a high sensitive nature".

I have applied to the Commission to reconsider its decision. I am even considering taking the Commission to court if it continues to refuse access to this crucial piece of advice. Apparently the legal service claims in it that it was impossible to render the application of the Data Retention Directive optional to Member States, a position disputed by legal scholars.

The Commission is currently carrying out an impact assessment on the future options with regard to the controversial 2006 Data Retention Directive. Apparently it is assessing neither the option of banning blanket data retention nor of making the sweeping policy of indiscriminate communications data retention optional for Member States.

More than 100 organisations from 23 European countries have asked EU Commissioners Malmström, Reding and Kroes in a joint letter 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". Among the signatories are civil liberties, data protection and human rights associations as well as crisis line and emergency call operators, professional associations of journalists, jurists and doctors, trade unions, consumer organisations and industry associations Directive.

Read the Commission's decision to decline access in full (pdf)

Blog post by Patrick - This post expresses the author's personal views.