DR-questions-2012

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Parliamentary questions on Data Retention

Introduction

The European Commission has recently commissioned a study to complement the Commission's own efforts to assess the impact of possible revisions of the Data Retention Directive 2006/24/EC. The study makes it clear that the policy options the Commission is considering do not include policies proposed by civil society, namely:

  • The policy option of an EU-wide ban on blanket communications data retention in favour of a system of expedited preservation and targeted collection of traffic data as agreed on in the Council of Europe's cybercrime convention.
  • The policy option of no longer make blanket communications data retention mandatory throughout the EU, and to regulate and restrict national retention schemes where such exist.

By asking the following questions to the Commission we can help convince it to consider these options in their impact assessment.

Proposed questions

The following questions should be asked by MEPs:

  • According to the evaluation report COM(2011) 225, the Commission intends to assess the impact of future changes to the data retention directive on industry and consumers including, "possibly, through a specific Eurobarometer survey to gauge public perceptions". Is the Commission intending to commission a Eurobarometer poll on citizen's support for blanket communications data retention rather than storing communications data on suspects only? If so, when is this poll to take place? If not, why not?
  • When presenting the evaluation report to the press, Commissioner Malmström asserted that "the constitutional courts in Germany, the Czech Republic and in Romania have said that the way these countries have implemented the data retention directive is not compatible with national law. So they do not criticise data retention itself". Will the Commission admit that this statement was false because the Romanian Court ruled that the principle of blanket retention is in violation of Article 8 ECHR and the Czech Constitutional Court questioned the necessity of blanket communications data retention as such?
  • On what criteria will the consultancy firm hired to report on the costs and benefits of data retention base their analysis?
  • Having regard to the European Court of Justice's jurisprudence, is the EU competent under Article 114 or 87 TFEU or any other provision to legislate on the purposes for which national law enforcement agencies may access communications data retained by providers in their own jurisdiction?
  • Is the Commission aware that civil liberties, data protection and human rights associations as well as crisis line and emergency call operators, professional associations of journalists, jurists and doctors, trade unions, consumer organisations and industry associations are all opposing the data retention directive, and what is the Commission going to do about it?
  • A survey conducted by research institute Forsa found that with communications data retention in place, one in two Germans would refrain from contacting a marriage counsellor, a psychotherapist or a drug abuse counsellor by telephone, mobile phone or e-mail if they needed their help (http://www.vorratsdatenspeicherung.de/images/forsa_2008-06-03.pdf). Is the Commission considering to make directive 2006/24 optional so that Member States can fully ensure the freedom of communications of their citizens?
  • The blanket collection of all telecommunications data deters informants from passing confidential information of public interest to journalists by telephone, fax or the Internet. One in 14 journalists says that data retention has negative effects on their work (http://www.dfjv.de/fileadmin/user_upload/pdf/DFJV_Studie_Freie_Journalisten.pdf). Is the Commission considering making directive 2006/24 optional so that Member States can ensure the untraceability of contacts to the press?
  • Those who seek counsel from a lawyer, a doctor or a help and information center (e.g. marriage counseling, counseling on addiction, crisis line) are aware that their contact could point to their personal problems (e.g. under criminal investigation, suffering from illness, a marriage crisis or an addiction), which can prevent them from seeking help by telephone, mobile phone or e- mail with data retention in place. Is the Commission considering to make directive 2006/24 optional so that Member States can ensure the untraceability of confidential contacts?
  • To the knowledge of the Commission, does data retention have a statistically significant impact on crime rates or crime clearance rates of a given country?
  • To the knowledge of the Commission, are crime rates or crime clearance rates in countries without communications data retention significantly different from rates in countries that have implemented the data retention directive 2006/24?
  • Does the Commission concur with the findings of an independent scientific study produced by the criminological department of the Max-Planck-Institute for Foreign and International Criminal Law according to which data retention in Germany and Switzerland did not result in a higher clearance rate of serious crime?
  • Does the Commission concur with the findings of an independent scientific study produced by the criminological department of the Max-Planck-Institute for Foreign and International Criminal Law according to which the Commission's evaluation COM(2011) 225 was, for various reasons, "unsuited to address the policy of blanket data retention"?

Asked questions

The following questions have already been asked by MEPs:

  • Following the recent leak of a Commission document showing that the Commission has not been provided with the data to show that data retention is necessary, will the Commission undertake to investigate, in the context of its current impact assessment, the policy option to repeal the Directive if compelling evidence is not forthcoming from the Member States?
  • Does the Commission believe that the simple assertion from some Member States that data retention is needed is enough to satisfy it that the Directive is in line with the EU Charter? If yes, how is that compliant with the Commission's Fundamental Rights check list (COM(2010) 573)? And is this belief expressed in any of the policy options the Commission is considering in in the context of its current impact assessment?
  • [There are various examples of EU law harmonising national legislation interfering with fundamental rights only where it is in place (e.g. Art. 1 2003/641/EC, Art. 25 2011/92/EU, Art. 9 pp. 2006/123/EC, Art. 5 2001/29/EG, Art. 15 ex-2002/58/EC).] In the Commission's opinion, is it legally possible to amend the Data Retention Directive 2006/24/EC to no longer make blanket communications data retention mandatory throughout the EU, and to regulate and restrict national retention schemes where such exist? Is the Commission examining this option in the context of its current impact assessment? If not, why not?
  • In the context of the current impact assessment on the future options with regard to the Data Retention Directive 2006/24/EC, is is true the the Commission is not assessing the option of an EU-wide ban on blanket communications data retention in favour of a system of expedited preservation and targeted collection of traffic data as agreed on in the Council of Europe's cybercrime convention? If so, why?
  • The European Commission has declared protection and implementation of fundamental rights an important goal and has issued a fundamental rights checklist (COM(2010) 573). Has the Data Retention Directive 2006/24/EC been evaluated against this checklist? If not, why not? Is the checklist used in the context of the Commission's current impact assessment on the future options with regard to the Data Retention Directive? If yes, how? If not, why not?
  • In the Commission's current impact assessment on the future options with regard to the Data Retention Directive, how does the Commission take into account the Romanian Constitutional Court's finding that blanket communications data retention violates the right to privacy under Article 8 ECHR? Is the Commission considering the policy option of following the Court's decision and ban blanket communications data retention? If not, why not?
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