Draft Directive on data retention

Out-Law News | 29 Jul 2005 | 10:35 am | 1 min. read

A leaked draft of the European Commission’s proposed data retention law suggests that the retention period for telephone data will be limited to one year, with internet data limited to six months, according to European Digital Rights (EDRi).

The lobby group has obtained a copy of the “Interservice Consultation” version of the draft Directive – a version that is sent to various Commission departments for input and possible amendment. The final version is not expected until August, according to EDRi.

The Commission promised in June that it would put forward its own data retention proposals, after the European Parliament rejected a Council draft Framework Decision, initiated by the UK, Ireland, France and Sweden, for an EU-wide data retention system.

The Commission is keen to ensure that any harmonisation of EU data retention laws is made by the Commission rather than individual Member States. This way, it says, the legislative process will be more transparent, requiring the approval of both the Commission and Parliament. Under the Council-led process, MEPs can only give their views on the proposals.

According to EDRi, the Commission’s draft closely follows the draft Framework Decision. Despite this, the Council is still pushing the draft Decision, and a clash between the two European institutions is likely.

The draft Directive

In brief, the draft indicates that the Commission is seeking a shorter data retention period than that detailed in the draft Framework Decision: only one year for data from fixed and mobile phones and six months for internet-related communications data.

This compares to a three-year data retention period in the draft Framework Decision.

The type of data to be retained under the Commission proposals does not include the content of the communications, but rather data that identifies the caller and the means of communication (e.g. subscriber details, billing data, email logs, personal details of customers and records showing the location where mobile phone calls were made).

The data can only be used for the purposes of preventing, investigating, detecting or prosecuting criminal offences and must be retained in such a manner that it can be quickly transferred to the competent authorities.

The Commission is also proposing to set up an advisory body, with representatives from law enforcement, data protection authorities and the electronics communications industry.

The opposition

All previous proposals for an EU data retention scheme have met with considerable opposition from civil liberties groups.

In 2003, human rights group Privacy International obtained a formal legal opinion on the Council’s proposals – which suggested that the draft Decision was unlawful because it breached the Convention on Human Rights.

In November 2004, the EU Data Protection Working Party, an independent EU advisory body, also issued a negative preliminary Opinion on the draft Decision.

The Commission’s final version of its draft Directive has not yet been published but already EDRi, together with the Dutch ISPs XS4ALL and Bit, has launched its opposition – a petition against data retention.