Data Storage Discord Could Cut EP Credibility, MEP Warns
Emotions ran “quite high” over mandatory retention of communications traffic data after a meeting last Thurs. between U.K. Home Secy. Charles Clarke -- who now heads the Presidency’s Justice & Home Affairs Council -- and European Parliament (EP) members, a parliament member told us. Clarke, who updated the EP panel on civil liberties, justice and home affairs (LIBE) on Council efforts at data retention, left many MEPs fuming over a seeming “take it or leave it” attitude on the Council’s part, the MEP said. But another said refusal to compromise could hurt Parliament’s credibility for years.
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Last Wed., the Council, hoping to adopt its framework decision that day, instead failed to agree on provisions about storage of Internet and telecom traffic data for law enforcement use (CD Oct 13 p7). The Council proposal, on the table over a year, competes with a draft EC directive. Last week the Council split over whether to pursue the framework decision or go with the directive as tentatively amended by the Presidency. The full EP twice has rejected the framework decision, partly because of anger over its exclusion from decision-making on an issue fraught with privacy and other concerns. In the end, framework decisions are adopted directly by member states, with MEPs in an advisory role.
The compromise text failed to persuade MEPs, said Alexander Alvaro, a German MEP who authored a LIBE report critical of the Council framework decision proposal. In fact, Alvaro said, it’s hard to see compromise in segments on scope, retention periods, cost reimbursement to ISPs and telcos, and the method proposed for updating lists of data to be stored. Like the framework decision, the Presidency’s proposal sets minimum storage periods for Internet and telecom traffic data, but lets member states require longer retention -- in this case, up to 2 years. Parliament isn’t ready to haggle on retention storage periods; if retention is required, it must be limited strictly, Alvaro said.
Lawmakers find the EC draft directive more palatable, Alvaro said. (The legislative procedure for directives gives the EP co-decision powers.) MEPs are preparing amendments to the draft, including provisions to ensure protection of personal data against undue privacy invasions. The EP will seek compromise, he said, but if the Council is serious, it must stop its “unilateral negotiations.”
European Data Protection Supervisor Peter Hustinx confirmed he’s been asked to review preliminary draft amendments from MEPs and to advise on language and additions where necessary. “My opinion on data retention contained quite a few suggestions already,” Hustinx told us.
“I think we can make a deal” by combining elements of the 2 proposals, said MEP and U.K. LIBE member Michael Cashman after Clarke’s talk. Cashman said few colleagues share his position. The Home Secy. made clear there’s give in the Council approach on duration of retention, costs judicial oversight and other matters. But, Cashman said, Parliament “has to seize the moment” and prove it can produce a first-reading deal -- not a “wish list” -- that’s practical and achievable. If it doesn’t, the Council will say it gave the EP a chance to make a mature joint decision and it couldn’t. As a result Parliament’s role will suffer 5-10 years, he said.
The Presidency is open to compromise -- hence Clarke’s declaration to Council members that it’s vital that all 3 entities collaborate on terrorism, a Home Office spokesman said. If Clarke’s attitude was truly take-it-or-leave-it, ministers could have adopt the framework decision last week, he said.
If, despite its talk of compromise, the EP blocks an agreement on data retention, the Council “will decide to continue with the framework decision,” a Council spokesman said. If the framework decision becomes law, the EP, with the Commission, will go to court, Alvaro said. The only losers there will be the EP, EC and the Council, who'll be seen as lacking the courage and maturity to protect their citizens, Cashman said.
Next week, EP political groups will assess chances for a deal, said Cashman. After that, they'll likely begin a fast-track procedure, introducing amendments from which to gain a better idea of the likelihood of agreement, he said. LIBE could vote on the package in late Nov., just ahead of this year’s early Dec. final plenary session. The U.K. Presidency wants a decision on data retention before Jan., when it hands the reins to Austria.