Data retention may get EU support, but not 'blind obedience'

Addressing the Civil Liberties Committee six days after the London bombings that killed at least 48 people, Mr Clarke gave support to moves to speed up draft EU legislation. It would oblige the retention of communications data from phone calls and emails to help fight terrorism, a plan rejected by MEPs in June when they sent the proposal back to the parliamentary committee for further debate.

On finding the right balance between security and freedom, Mr Clarke said: "The point I want to make is that the human right to travel on the underground in London on a Thursday morning without being blown up is also an important right."

He added that the challenge of a more secure Europe requires "a proportionate response," adding: "None of our proposals are new, they were not new even after the Madrid attacks, but they are things we still need to do."

The proposal to store data from phone calls, text messages and emails for a maximum of three years was put forward by the UK, Ireland, France and Sweden. The stored information would only include details on the date, time and location of the communication but not on the content of the conversation.

But Parliament's rapporteur on data protection, Alexander Alvaro, who asked MEPs in June to reject the proposal to store data from phone calls and emails, told Mr Clarke: "You have our support but you will not get blind obedience. I find very annoying the rhetorical way people use to explain how to fight terrorism."

He continued: "You argue that intelligence units are the best weapons but they failed in New York, Madrid and London."

Many MEPs insisted that Member States must justify the data retention measures. Holland's Kathalijne Maria Buitenweg (Greens/European Free Alliance), said: "Privacy is not something holy but it is up to us to prove a measure is necessary."

An insider told OUT-LAW that Mr Clarke was given a very hostile reception from the Committee. The Home Secretary admitted that no evidence of his plan's possible effectiveness had been provided to the Parliament. He then began to promise a text showing that it was proportionate and reasonable – before correcting himself and saying that he would provide "examples" of how it might have been useful. The source, who asked not to be named, commented: "You can provide examples of where it would be useful to have every citizen electronically tagged – but this doesn't mean that it's an appropriate policy."

Mr Clarke did receive support from European Commission Vice President Franco Frattini. In a press conference yesterday about the Commission's role in the fight against terror, Mr Frattini said it will adopt a proposal for a Directive on the retention of data in September. "It is our aim to provide constructive input to ensure that progress achieved so far in the field of data retention will result in a proportionate instrument, based on solid legal grounds."

But the Commission proposal is likely to differ from Mr Clarke's.

Mr Clarke wants a minimum retention period of one year and a maximum period of three years. Recent Commission proposals suggested a maximum period of one year.

Mr Frattini also acknowledged that data retention has a cost for industry. Speaking at a press conference in Brussels on Tuesday, Britain's Foreign Secretary, Jack Straw, dismissed suggestions that these costs will be excessive. "There may be some costs but it is surely a cost we should pay for the preservation of human life," he said. According to the IDG News Service, he added that the costs will be less than the companies say and that, in any case, mobile operators and ISPs "are not the poorest companies in the world."

Labour MEP Claude Moraes told the BBC that "even medium size internet providers or phone operators would find this quite crushing."

Compliance management vendor AXS-One points out that there is also a logistical point to consider: the resulting database would be huge, and retrieval of  the data is a bigger issue than how to store it. "Has the Government even considered whether companies have this technical capability," it asks?

A view on storage and retrieval

AXS-One's Managing Director Mark Donkersley said: "Keeping records of traffic on millions of private emails, text messages and mobile phone calls isn't new. The technology to store volumes of electronic data has existed for years and is expanding to encompass an ever-wider variety of data."

He points out that certain industry sectors and organisations already retain emails and other forms of data – and have been doing so cost effectively, to the benefit of the business and in accordance with the law for years.

He continued:

"Most, if not all, of the information Charles Clarke refers to is already available in electronic format. By capturing the existing information and storing it in a centralised, electronic repository, it reduces the physical storage impact and provides intelligent search and retrieval capabilities within seconds. This element is crucial – the ability to search and retrieve archived data instantly and efficiently – as there’s no value in storing masses of data if it cannot be searched and retrieved on demand."

He suggests that such a system would also allow pro-active monitoring and, with the additional capability to 'audit the auditors,' he concludes, "this would hopefully allay any concerns that human rights organisations may have about who can access and search the archive, why they access it and what they then do with that information."