16 January 2012

Data Retention: EU Commission Should Facilitate Its Revocation


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Image: Data Center by s_w_ellis on Flickr
Data Center

About a week ago a secret communication of the European Union Commission leaked to Quintessenz – an Austrian data protection and privacy advocacy group.

The communication basically acknowledges that both, the data retention directive (DRD) and the corresponding legislation in the member states to the EU have missed their target.

Best evidence

for the above may easily be obtained by the communication itself, however you need not read it in its entirety, since I have prepared a short summary for you:

– The EU Commission complains it has received qualitative response to its questions from only 11 out of 27 member states.
– There is next to no evidence on the value of data retention in terms of public security and criminal justice. It is unclear whether data requested would be available anyway without the retention obligation and Data Protection Authorities do not know what is being kept or deleted by operators.
– While law enforcement agencies would love to know who communicated with whom, when, where and how, they can hardly make it happen, since unclear definitions in the DRD have encouraged heterogeneous interpretations of the scope so the agents find it very difficult to get this data on time for their investigations.
– The so-called ‘serious crime are not defined at EU level and this leads to even more legal uncertainty – e.g. the entertainment industry calls upon the extension of DRD’s purpose to include copyright infringements, which may include illegal downloads / piracy.
– Telco operators complain about the considerable costs of compliance which are disproportionately high and hence discriminatory for smaller enterprises.

Putting it all together

it turns out that the DRD in its current form is useless because

– it does not solve legal uncertainties, but creates rather new ones;
– its scope is open to a debate and the EU Commission is keen to extend it (to cover also intellectual property infringements);
– it has failed in fulfilling its purpose – the harmonisation of the Internal Market.

Therefore,

the only reasonable step

of the EU Commission would be to immediately facilitate the revocation of the DRD!

Your thoughts?

1 April 2011

Austria’s Data Protection Council On Data Retention – A Déjà Vu


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Who remembers the cat scene in The Matrix?
The scene depicted Neo, Morpheus & the other good guys convinced that they had already witnessed or experienced a certain situation. What do we usually call this experience or state of mind?
Déjà vu, right?
Unlike the most cases of a déjà vu where no determination can be made as to whether the circumstances of the previous encounter were imagined or true, in that particular scene from The Matrix the cat indeed passed the door twice.
The good guys instinctively felt that something was wrong. And their feelings did not betray them: something was wrong indeed!

Data retention is The Matrix in real life

In a previous blog post I did already compared the laws on data retention with the bad guys’ attempt to maintain total control in The Matrix.
When I recently read that the Austrian data protection council had again disfavoured the then current bill on data retention in a critical statement, it felt like a déjà vu to me.

What does the council criticise?

1. The council has some very serious doubts as to data retention bill’s compatibility with Art 8 of both, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

2. While the council acknowledges that law enforcement authorities should be equipped by sufficient powers in order to fight organized crime and that access to communication data might be helpful in such context, it opines that such powers must be applied only to concrete occasions and be subject to specific controls.

Data stormphoto © 2006 Dave Herholz | more info (via: Wylio)

3. The council further urges the European Commission to eventually conduct the evaluation owing to Article 14 of the Directive 2006/24/EC.

4. In the event that Commission’s evaluation results in a review of the data retention Directive which recommends the implementation of lesser onerous measures, the council suggests that the legislature opt for the so-called quick-freeze procedure. The latter recently gained a measure of popularity because of its submission to public debate in Germany.

5. Last but not least and given the “informative value” of retained data, the council calls upon the legislature to maintain the highest possible data security standards when transposing the Directive.

Will this statement halt the transposition of data retention in Austria?

Unfortunately, it will not, because the data protection council has advisory and, hence limited, powers.
Its statement is nevertheless significant – it once again makes it very clear that data retention is at odds with fundamental human rights, and that the politicians are very well aware of this fact.

What can a single individual do?

First of all inform yourself and inform others who are not yet familiar with data retention. And since data retention is considered avoidable – learn how to either avoid it or make it appear obsolete.

Thoughts?

Did I miss an important point? What else would you suggest?

 

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