Data retention and human rights

Sent e-mail to EU data protection officer:

Dear Mr Hustinx,

the Commission is currently drafting a directive on the retention of telecommunications traffic data, and you will probably be asked to issue an opinion in regard to this proposal.

I have dealt with the matter of data retention academically and have written an essay on its proportionality, which I am attaching to this e-mail for your information. Let me briefly put forward the legal grounds for why, in my opinion, blanket data retention violates the ECHR, no matter for what duration the data is to be retained:

The citizens‘ right to privacy is not limited to requiring safeguards against misuse of data. Instead, disproportionate or excessively intrusive interferences are illegal altogether.

In the case of traffic data, it is disproportionate to retain everybody’s communications data just because a minuscule fraction of communications (about 0.0004% according to a German estimate) could be important to the authorities later on. Data retention cannot be expected to lower crime rates (there is no indication whatsoever to that effect). On the other hand, the end of anonymous telecommunications would seriously hamper confidential communications (e.g. communications with doctors, lawyers, journalists, political dissidents, …) because everybody would have to fear their communications being traced or exposed later on.

In all, the harm data retention would do is clearly disproportionate in comparison to its potential benefits. Therefore, data retention is incompatible with Article 8 of the European Convention on Human Rights. The disproportionality of data retention has been confirmed by the following: Art. 29 Data Protection Working Party, Opinion 5/2002, http://europa.eu.int/comm/internal_market/privacy/docs/wpdocs/2002/wp64_en.pdf and Opinion 9/2004, http://europa.eu.int/comm/internal_market/privacy/docs/wpdocs/2004/wp99_en.pdf; Covington & Burling, Memorandum of laws concerning the legality of data retention with regard to the rights guaranteed by the European Convention on Human Rights, dated 10/10/2003, http://www.statewatch.org/news/2003/oct/Data_Retention_Memo.pdf, 3; Recommendation of the European Parliament on the Strategy for Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime (2001/2070(COS)), dated 06/09/2001, document reference A5-0284/2001; Statement of the European Data Protection Commissioners, dated 11/09/2002, http://www.fipr.org/press/020911DataCommissioners.html.

I am pleased to find that in 2001, you agreed in saying: „The routine retention of traffic data beyond the requirements of billing purposes in order to permit possible access to law enforcement bodies is an improper invasion of the right to privacy guaranteed to individuals by Article 8 ECHR.“ (http://www.paris-conference-2001.org/fr/Contribution/hustinx_contrib.html)

You have probably read Mr Alvaro’s two papers on data retention (www2.europarl.eu.int/registre/commissions/libe/projet_rapport/2005/357618/LIBE_PR(2005)357618_EN.pdf and http://www.europarl.eu.int/meetdocs/2004_2009/documents/DT/553/553885/553885en.pdf). I agree with these papers in the following points:

  • data retention is neither appropriate nor necessary and is unreasonably harsh towards those concerned.
  • individuals involved in organised crime and terrorism will easily find a way to prevent their data from being traced.
  • data retention is incompatible with Article 8 of the European Convention on Human Rights.
  • data retention’s objectives could be achieved simply by implementing the Council of Europe’s Convention on Cybercrime and improving crossborder cooperation in the area in question.
  • the shortcomings in connection with data storage for a specified purpose should be eliminated, instead of introducing data retention, and cross-border cooperation should be improved.
  • the data storage/retention period should be limited, throughout Europe, to a maximum of six months.
  • the extent of data to be stored/retained should not go beyond what is commercially necessary.

Also, in case of prepaid products, anonymous communications must remain possible.

I hope that your opinion will follow the lines of the Article 29 Group’s and the European Parliament’s opinions in speaking out strongly and unambigously against any kind of blanket retention of traffic data. Your opinion can help stop the creation of unparalleled, massive databases on millions of innocent citizen’s communications and movements.

Yours sincerely,

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