With the proposed new directive on personal data, the European
Commission aims to update the existing Telecommunications Data
Protection Directive. Decisions must be made about controversial
topics such as traffic data, mobile location data, public
directories and spam. Among these, the hottest topic is likely to
be the issue of retaining traffic data for law enforcement
purposes.
There has been recent controversy over the issue of retaining
traffic data. Traffic data covers who or what is talking to whom –
whether the communication is by e-mail, phone or otherwise. While
this data can be very sensitive information, it does not actually
cover the content of the communications.
Under the existing Directive, traffic data must be erased when
no longer needed for the provision of the service or for billing.
The Directive also refers to exceptions which Member States may
rely upon to derogate from this, such as national security and
investigation of crimes. The new draft Commission keeps this
general provisions, which the Commission says is intended “to
ensure that a high level of protection of fundamental human rights
is maintained.” The new draft says:
"Traffic data relating to subscribers and
users processed and stored by the provider of a public
communications network or service must be erased or made anonymous
when it is no longer needed for the purposes of the transmission of
a communication..."
The draft also provides that Member States “shall ensure the
confidentiality of communications and related traffic data” through
national legislation, including a prohibition on “listening,
tapping, storage or other kinds of interception or surveillance of
communications and the related traffic data”.
However, the new draft also allows States to make exceptions in
their domestic laws. Accordingly, the Directive means the UK, for
instance, could pass legislation to restrict these obligations for
certain purposes, the widest of which is for the detection of
criminal offences.
The UK government has on several occasions denied having any
plans for data retention laws and the UK’s Information
Commissioner, as well as the EU’s Data Protection Working Party,
are firmly against such laws. The law enforcement agencies of
Europe are generally in favour of data retention laws. In the UK,
the National Criminal Intelligence Service specifically asked the
Home Office for laws to this effect. According to Statewatch, a
civil liberties group, UK, Belgian and Swedish delegations of the
European Council expressed a preference for data retention for a
limited period on grounds of national security etc. This preference
was opposed by the European Commission.
