EU lawyers judge data retention scheme illegal

By David Cronin

Date: 14/04/05

Lawyers advising both the European Commission and Council of Ministers have concluded that a plan to retain details of all telephone calls, faxes and emails in the EU would be illegal in its present form.

After the 11 March 2004 train bombings in Madrid, EU justice and interior ministers undertook to introduce a data retention scheme by June this year.

In principle, this would allow law-enforcement authorities to track communications as part of their investigations into terrorism and other crimes.

The UK, France, Sweden and Ireland drew up a proposal for such a scheme. Last month Germany, Italy and Spain also urged that telecoms companies and internet service providers should be obliged to store details of all telephone and web traffic for one year, including the numbers of people called, the addresses of senders and recipients of emails, and details of mobile-phone users.

The legal services in the Commission and Council have concluded that the proposal by the four member states is not well founded in the Union's treaties.

While the four have argued that it should be envisaged as a justice and home affairs measure, the lawyers contend that telecommunications must be regulated under internal market provisions.

This has important consequences, affecting which of the EU's institutions can propose the measure and which will have a say on it.

The Council's lawyers have advised that under the terms of a 2002 EU directive on data protection, only the Commission has the right to propose the kind of scheme set out by the four governments.

As the Commission's lawyers have come to a similar view, it is expected that the EU executive will shortly adopt a data retention proposal that circumvents the legal obstacles identified.

Officials say work is at an advanced stage and the measure could be ready for approval by the 25 commissioners in the next few weeks. It is expected that this will advocate a minimum 12-month retention period.

Telecoms firms are querying why there is a need for such a scheme, when they already co-operate regularly with law enforcement authorities by giving details of telephone and fax calls when judicial orders are issued.

Michael Bartholomew from the European Telecommunications Network Operators Association (ETNO) said: "There should be an assessment of the current co-operation and current system before we go further."

Telecoms firms are worried about the cost implications of being required to have greater facilities for storing data. Their estimates indicate that firms may have to spend hundreds of millions of euro on new equipment for that purpose, as well as face data management costs of €50 million each year.

A lobbyist representing internet service providers said that it had never been explained why a data retention scheme was deemed necessary to fight terrorism. Police investigating the Madrid attacks, for example, were able to find details of mobile phone calls made by the bombers without Spain having mandatory data retention.

Tony Bunyan of the civil liberties group Statewatch said that the EU institutions' legal services had paid insufficient attention to the right to privacy, as recognised by the European Convention on Human Rights. "The proposal should be withdrawn as the law-enforcement agencies have all the powers they need," he said. "If it goes ahead and the costs are borne by the communications industry, we will all end up having to pay to be placed under surveillance by the state."

The Legal Services of both the Council of the European Union and the European Commission have argued that a controversial proposal for a Framework Decision on the retention of telephone and Internet data, in the context of justice and home affairs, proposed in April 2004 by the UK and several other Member States, is partly illegal. Instead, the European Commission is expected to bring forward a proposal under the First Pillar as an internal market measure affecting the telecommunications sector. The measure is aimed as part of the fight against international terrorism.

Statewatch: Press Release, 2.4.05: EU: Data Retention proposal partly illegal, say Council and Commission lawyers http://www.statewatch.org/news/2005/apr/02eu-data-retention.htm

European Telecommunications Network Operators' Association http://www.etno.be/

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