25 March 2011

Europe’s Last Stand Against Data Retention?

The Matrix has you...photo © 2008 Roman Pinzon-Soto | more info (via: Wylio)

Do you remember Morpheus saying “Wake up Neo… The Matrix has you!”?
Do you remember Agent Smith implanting an electronic tracking bug in Neo’s body?
I bet you do, because the image transported by this film does not appear that fictional anymore.
It may be just an arm’s length away.
Yes, I am talking about the retention of your communication traffic data. By “you” I mean all of you who live under the jurisdiction of a member state of the European Union. Any member state? Hmm, well, possibly not, but let me first explain

What is data retention and its purpose?

Data retention in the sense of the Directive 2006/24/EC provides for the storage data arising out of telephone calls made and received, emails sent and received and websites visited. Since location data counts to traffic data, it is collected too.

The introduction of data retention has always been justified with combating terrorism and serious crimes, but it aims to fight file-sharing users instead.

Owing to its controversy, legislation produced by transposition of the data retention Directive has been contested in some EU member states. While Ireland challenged Directive’s compatibility with formalities under the then current EC Treaty,  the constitutional courts of Romania and Germany were asked to deal with data retention’s compatibility with fundamental human rights. As a consequence, the respective provisions got abrogated, but not annulled.

Data retention gains territory

Until recently, Austria managed to postpone the transposition of the Directive 2006/24/EC into its national law. Well, the ostensible resistance grounded on discrepancies between the two coalition forming parties rather than on human rights deliberations.

Doris Bures, Austria’s Minister of Transport, Innovation and Technology announces the upcoming enactment of data retention. Courtesy to APA (Archiv/Fohringer)

However, some weeks ago the farce went to an end and a bill amendment to the telecommunications act was nodded through the council of ministers prior to its submittal to the parliament. Reportedly, the bill is being heavily discussed among the members of the parliament justice committee. The result will be, despite all assurances, the total control of communication.

Now that Austria will no longer be a safe harbour in terms of privacy, are there any other member states that still have not implemented the data retention directive?
Let us have a look at the map of Europe…
Is someone missing?
Yes, there is!

The land of milk and honey

Flag countrysidephoto © 2009 Håkan Dahlström | more info (via: Wylio)


Can you imagine: the Swedes usually known for their discipline and law-abiding behaviour are now obstructing the implementation of Directive 2006/26/EC.
It seems that an arrangement among the Left Party, the Green Party and the Swedish Democrats managed to apply a procedural loophole in order to delay the transposition for at least a year.

What does it mean?

As I previously mentioned, the data retention directive has been referred to a judicial review a few times already. These reviews’ action items towards legislation always read the same: improve!
In this respect, it is likely that the Court of Justice of the European Union delivers a judgment dealing with data retention’s compatibility with fundamental human rights under the acquis.

The good news at the end

I still have hope that this madness will come to an end. Not only because hope springs eternal, but because anyone can make an effort and engage in lawfully fighting data retention.
At least anyone who cares about fundamental human rights.

And if Sweden should fail, then it could be us as individuals who form Europe’s last stand against data retention!


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Comments (15)

  1. 25 March 2011
    upcoming exhibitions said...

    nice post

  2. 26 March 2011
    Spolly said...

    But the content would not be stored by default, wouldn’t it? Just Sub A & Sub B (X)…

    • 26 March 2011
      Emil A. Georgiev said...

      The content of, say, a phone call would not be stored by default.
      Nevertheless, the fact that such a phone call occurred as well as the participants in the call will be reproducible for a period of at least 6 months (= retention of the traffic data).

  3. 27 March 2011
    Brassic Bhai said...


    just for the sake of arguments.

    Honest and Law abiding citizens should not really fear their data traffic being retained or stored. One may feel uncomfortable in the knowledge that their activities may be stored or that their activities may no longer be that private as they would like to believe, but nonetheless, the mere presence of data retention laws would not mean that your privacy will be exposed to the world. Would not it be fine, if data is stored and not open for retrieval by any one randomly? Besides a government should have strong and compelling reasons to ever make an exposure?

    *p.s – i have more reasons to be against this than be for this.

    • 27 March 2011
      Emil A. Georgiev said...

      Hi Brassic Bhai and thank you for your comments on the Reguligence Weblog!

      While I agree to some extent with what you write, we must not forget that data retention as currently introduced destroys the main principle laid down by the Directive 95/46/EC, namely that purposes of data processing must be explicit and legitimate and must be determined at the time of collection of the data; further to collection, such purposes, shall not be incompatible with the purposes as they were originally specified.

      The problem I detect is that owing to the ambiguous provisions of Directive 2006/24/EC governments may harvest traffic data from the ISPs within the retention period and then store them for a practically indefinite period of time and without any specific purpose. I don’t know what they might undertake with it, but in fact they are under no limitations.

      Besides, I am not convinced that data retention is a capable tool to fight serious crimes, because it is held to be avoidable, provided, one assumes the necessary time and effort. Hence, the subjects of data retention will not be the technology experienced criminals, but rather the run-of-the-mill users on the Internet.

  4. 1 April 2011
    kijo said...

    Most awessome post!

  5. 1 April 2011

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  6. 9 April 2011
    Kenia Shurr said...

    Adore this article. In which did you come across this data?

  7. 29 April 2011
    Steven said...

    Very interesting post, I didn’t realise that.

  8. 29 April 2011
    Steven said...

    Muy útil e informativo el artículo. Gracias por postearlo.

  9. 8 May 2011
    Steven said...

    Thank you very much for your useful advice.

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