Liberty or security: the EU must choose which comes first

Date: 29/11/01

By Peter Chapman

The most touching moments from the horrific 11 September attacks were the mobile phone calls of doomed victims expressing desperate farewell messages to their loved ones.

But no sooner had the stunned world come face-to-face with the terrible reality of that day than law enforcement agencies were calling for sweeping new rights to do battle with the terrorists who use the anonymity of mobile phones and e-mail to plan their evil deeds.

In Europe, member states and not the EU still have the final say on their national security issues. Nevertheless, 11 September transformed a row over draft data-privacy rules focusing on blocking "spam" and "cookies" into a fierce debate between governments and MEPs over the right to snoop on

e-mail and telecom data. George Bush added fuel to the fire - including authorised tracking of data on the hit-list of counter terrorist measures that his European allies could adopt.

The draft EU law enshrines consumers' right to privacy when they use the telephone or e-mail. Debate is raging over article 15 of the law, which tries to clarify the boundaries of these rights. Key questions are: the scope for authorities to track the comings and goings of suspects on a case-by-case basis; the ability for the same authorities to force network operators to retain traffic data of customers as a matter of course; and the definition of what data can be retained and, crucially, for how long.

EU states agreed last week they may adopt separate laws to restrict data privacy where security was involved and that they may force operators to retain traffic data on all customers for an undefined "limited time".

The deal, agreed in behind-closed-doors talks, puts them diametrically opposed to the European Parliament's civil liberties committee.

It backed rapporteur Marco Cappatto, who said surveillance should be "exceptional and authorised in each case by a specific court or other order" and that "any form of wide-scale general or exploratory electronic surveillance is prohibited".

The Italian Radical fears anything beyond this minimum would encroach on the privacy of the public. He also doubts the merits of law enforcers collecting reams of data.

Telecoms chief Erkki Liikanen said the Commission accepted the need for surveillance within the limits of the European Convention on Human Rights - but insisted there should be a time limit for data retention.

EU telecom operators are caught in the middle between member states and agencies such as Europol and the Parliament and civil libertarians.

Firms don't want to be seen as an obstacle to catching the bad guys. For years most police and intelligence agencies have had secret deals with the telecom industry giving them access to calls and other data.

However, they fear the events of 11 September could lead to more regulations forcing them to keep expensive data files on their clients - fragmenting the single market in the process.

Operators wants to know how long they will be required to hold data, and whether they will be forced to pay the storage costs. And they warn customers could be put off e-mail and other services if they believe their private mail will be prised open by "Big Brother".

The issue was top of the agenda at a special meeting of European cyber-crime experts in Brussels this week.

UK civil liberties campaigner Tony Bunyan says the debate's outcome could show that the EU wanted to enshrine data privacy "as fundamental standards in any democracy".

Feature on the debate over data privacy laws. Article forms part of a special report on telecoms.