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Date: 2004-11-18
Data Retention: Morgen in Bruessel JHA-.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- http://quintessenz.org/data_retention -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- Aus dem EDRI-Newsletter http://www.edri.org/ The European Working Party of data protection authorities has finally released an opinion on the proposed retention of communication traffic data. The Working Party concludes the proposal is not acceptable within the legal framework set by Article 8 of the European Convention on Human Rights. According to the Working Party data retention deserves the same level of protection as interception. They cite jurisprudence from the European Court of Human Rights that decrees that all interception of telecommunications data must fulfil three fundamental criteria; a legal basis, the need for the measure in a democratic society and conformity with a legitimate and listed aim. The proposal sent to the European Council on 28 April 2004 by France, Sweden, Ireland and the UK does not meet any of these criteria, according to the data protection commissioners. On the necessity of the measure the Working Party remarks: "Not everything that might prove to be useful for law enforcement is desirable or can be considered as a necessary measure in a democratic society, particularly if this leads to the systematic recording of all electronic communications. The framework decision has not provided any persuasive arguments that retention of traffic data to such a large-scale extent is the only feasible option for combating crime or protecting national security." With little more than 3 pages the Opinion is very brief, but should only be considered a first step. "In view of the early stage of discussion in the relevant working party of the Council, this opinion has a preliminary character. The Working Party intends to reconsider the subject, on the basis of a revised draft, at a later stage." Such a revised draft has already been prepared and will be discussed in the Council of ministers of Justice and Home Affairs (JHA Council) of 19 November. The document is still kept secret, but is listed in the index of the Consilium as document number 14190/1/04 REV 1 (Not publicly available). According to the annotated agenda of the upcoming JHA Council, the debate will focus on the difference between storing existing data, and a possible obligation to gather new kinds of data, specifically for law enforcement purposes. "Considering the scope of the minimum set of data as proposed in Article 2(2) of the draft framework decision, it is of great importance to determine whether an obligation to retain data that is imposed on providers should be restricted solely to data which are retained for commercial or business purposes, or whether it should also cover data which the providers possess as part of their own business operations." If the obligation would only see to existing data, market parties with a focus on privacy could decide to only store a minimum amount of data. Logging visited URLs would be completely out of the question, since there is hardly any provider in the world that has a legitimate business purpose to gather those data outside of their own content-range. Another issue that will be discussed in the upcoming Council is the need of law enforcement authorities for systematic retention of the information about all incoming and outgoing communications of every citizen (in stead of concentrating on suspects of specific crimes). Both the Working Party, and earlier EDRI and Privacy International in their long paper against mandatory data retention, underline the total lack of evidence, and the conspicuous absence of law enforcement representatives from the political debate both nationally and at the European level. Article 29 Data Protection Working Party, Opinion 9/2004 (15.11.2004) http://www.bfd.bund.de/Presse/pm20041115b.pdf EDRI and Privacy International paper against data retention (15.09.2004) http://www.edri.org/campaigns/dataretention Annotated agenda of the JHA Council on 19.11.2004 http://www.eu2004.nl/default.asp?CMS_TCP=tcpAsset&id=6BBDE6B5E7854DCF8909F1BF6B2FF7D8X1X38644X09 Public register of Council documents (many 'Not Available') http://register.consilium.eu.int/ - -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- edited by Harkank published on: 2004-11-18 comments to office@quintessenz.at subscribe Newsletter - -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- 
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