European Govt. Ministers to Debate Scope of Traffic Data Retention
European justice and home affairs ministers could decide Thurs. the scope of a controversial proposal aimed at forcing communications service providers (CSPs) to hold Internet and telecom traffic data for law enforcement agencies. At its meeting that day, the Justice & Home Affairs (JHA) Council will consider the draft framework decision floated by the U.K., France, Sweden and Ireland. As originally proposed, the decision would require retention for 12-36 months. In Oct., however, the European Presidency proposed making 12 months the maximum (CD Oct 19 p9).
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Council members are divided over the scope of the proposal, a JHA spokesman said. The majority want to draw up a list of the information they want withheld and then ask providers to do so, even if it imposes costs that won’t be reimbursed. A minority want only the data held that CSPs already can retain, he said.
The earlier version of the data retention proposal angered CSPs and privacy advocates (CD Sept 23 p7). CSPs aren’t much happier with the revised text. For one thing, the JHA said in a briefing document for the meeting that it will consider whether CSPs should be obliged to retain categories of listed data that are “processed/generated” by a provider in supplying telecom services. CSPs have argued strongly that “processing” data is different from “generating” them, said EuroISPA Regulatory Affairs Mgr. Richard Nash. Data generated to tell data packets where to go aren’t processed in a form CSPs can store, he said, and they've tried in vain to make that clear to the European Commission.
Once the JHA has decided on the scope of the framework decision, ministers will continue to discuss the text, the Council spokesman said. The Council’s declaration on terrorism requires the document to be adopted by June 2005, he said. Once adopted, it moves to the European Parliament (EP), which must be consulted but has no decision-making authority on the issue. Because there’s a perception among some European Union member states that the Parliament is “not pragmatic enough,” ISPs hope EP members don’t make “too much noise” about the proposal, Nash said. The Council may throw the EP’s opinion “in the bin,” he said, but it might pay closer attention to a measured debate.
It might be difficult for the Council to ignore what Nash called a “damning report” issued recently by the Internal Market Directorate’s Art. 29 Data Protection Working Party. Data protection officials said the proposal doesn’t satisfy European human rights law. The report definitely will “have raised a few eyebrows,” Nash said, and will give ammunition to member states that want a directive with more deference to privacy.