[iwar] FLASH: new EU Presidency position on traffic data retention (not good) (fwd)

From: Fred Cohen (fc@all.net)
Date: 2002-05-17 12:18:50
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From: Fred Cohen <fc@all.net>
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Date: Fri, 17 May 2002 12:18:50 -0700 (PDT)
Subject: [iwar] FLASH: new EU Presidency position on traffic data retention (not good) (fwd)
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The following document, dated yesterday, is published on the EU Council
website. They are propoals from the Presidency to the member state
governments for revised positions on negotiating the new Comms Data
Protection Directive.

The sections dealing with data retention are below. In essence they
attempt to legitimise blanket retention of traffic data on entire
populations, and pass the buck to ECHR jurisprudence.

This is in stark contrast to the position taken by Stefano Rodota, Chair
of the official EU Watchdog on data protection :

"Systematic and preventive storage of EU citizens communications and
related traffic data would undermine the fundamental
rights to privacy, data protection, freedom of expression, liberty and
presumption of innocence. Could the Information Society still claim to
be a democratic society under such circumstances ?"

ARTICLE 29 - DATA PROTECTION WORKING PARTY 7th June 2001
http://www.statewatch.org/news/2001/jun/07Rodota.pdf

--
Caspar Bowden
Director, Foundation for Information Policy Research
Tel: +44(0)20 7354 2333                 www.fipr.org

(see orginal : for changes with regard to the common position are
indicated in bold, whilst changes to the amendments submitted are in
bold italics.)
http://register.consilium.eu.int/pdf/en/02/st08/08657en2.pdf

Recital 11

(11) Like Directive 95/46/EC, this Directive does not address issues of
protection of
fundamental rights and freedoms related to activities which are not
governed by
Community law.

Therefore it does not alter the existing balance between the
individual's right to privacy and the possibility for Member States to
take the measures [.] referred to in Article 15(1) of this Directive,
necessary for the protection of public security, defence, State security
(including the economic well-being of the State when the activities
relate to State security matters) and the enforcement of criminal law,
such as those which allow Member States to require the provider of a
public communications network or publicly available electronic
communications service to retain traffic and location data in accordance
with the law.  [.]

Consequently, this Directive does not affect the ability of Member
States to carry out lawful interception of electronic communications, or
take other measures, if necessary for any of these purposes and in
accordance with the European Convention of Human Rights and Fundamental
Freedoms as interpreted by the rulings issued by the European Court of
Human Rights.  Such measures must be appropriate, strictly proportionate
to the intended purpose and necessary within a democratic society. 

....
Article 15(1)

1.  Member States may adopt legislative measures to restrict the scope
of the rights and obligations provided for in Article 5, Article 6,
Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such
restriction constitutes a necessary, appropriate and proportionate
measure within a democratic society to safeguard national or State
security, defence, public security or the prevention, investigation,
detection and prosecution of criminal offences or of unauthorised use of
the electronic communication system, as referred to in Article 13(1) of
Directive 95/46/EC.  To this end Member States may inter alia adopt
legislative measures providing for the retention of data for a limited
period justified on the grounds laid down in this paragraph.  All the
measures referred to in this paragraph shall be in accordance with the
general principles of Community law including those referred to in
Article 6 paragraphs 1 and 2 of the Treaty on European Union.  [...]

(Amendment 32 acceptable with small modification)

Recital 11

(11) Like Directive 95/46/EC, this Directive does not address issues of
protection of fundamental rights and freedoms related to activities
which are not governed by Community law. 

Therefore it does not alter the existing balance between the
individual's right to privacy and the possibility for Member States to
take the measures [.] referred to in Article 15(1) of this Directive,
necessary for the protection of public security, defence, State security
(including the economic well-being of the State when the activities
relate to State security matters) and the enforcement of criminal law,
such as those which allow Member States to require the provider of a
public communications network or publicly available electronic
communications service to retain traffic and location data in accordance
with the law.  [.]

Consequently, this Directive does not affect the ability of Member
States to carry out lawful interception of electronic communications, or
take other measures, if necessary for any of these purposes and in
accordance with the European Convention of Human Rights and Fundamental
Freedoms as interpreted by the rulings issued by the European Court of
Human Rights.  Such measures must be appropriate, strictly proportionate
to the intended purpose and necessary within a democratic society. 

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