[Chapter-delegates] Isoc , Eu Directive on data retention and Romanian Law request for comments

Tue Jun 28 13:35:26 PDT 2011

Eduard, All

Let me jump in and provide some information and context at EU level which, I trust, you will find useful.

There were already number of calls for the withdrawal of the 2006 EU Data Retention Directive. It has been confirmed at a conference held by the European Commission in Brussels on December 3, 2010.The conference was part of the evaluation process that the Commission is undertaking of the Data Retention Directive. The Commission has delivered its evaluation report on the functioning of the directive in April this year (see below & attached).

While the Commission seemed to favour amending the legislation to include additional safeguards, human rights groups and some data protection organisations called for the complete withdrawal of the directive, citing the lack of concrete evidence to justify the degree of interference with citizens’ privacy.

At the conference, many stakeholders raised concerns about the lack of substantive evidence to justify the need for the directive’s provisions. However, some law enforcement authorities (LEAs) indicated that it was not possible to provide such evidence in many cases because of concerns about confidentiality.

Stakeholders were also critical of the statement by the EU commissioner for home affairs, Cecilia Malmström, that there is no evidence of serious abuse of retained data under the directive (i.e. use of data for other purposes than those specified in the directive). According to a Polish representative, Poland has reported to the Commission many cases of abuse, including that of retained data being used in civil proceedings.

The discussion drew out strongly differing views on the value of and justification for the directive from LEAs and human rights groups. LEAs argued that access to communications data is absolutely critical to detect and combat serious crime, while human rights groups criticised the directive for its indiscriminate nature, making communications data relating to every citizen accessible to LEAs.

Peter Hustinx, the European Data Protection Supervisor (EDPS), voiced very strong concerns about the directive, calling it the “most invasive” instrument ever enacted in the EU, and as enabling a “huge interference with the right to privacy of all citizens”. Mr Hustinx also pointed to the lack of concrete evidence to support the need for systematic retention of all communications data, and suggested that more targeted measures should be considered as alternatives.

The directive currently allows member states considerable discretion in many of these areas, partly by design (for example, the retention period of between six months and two years is left for the member states to decide upon) and partly due to the omission of specific implementation details in the directive (for example, there are no provisions relating to access procedures).

Last but not least, I have attached the pretty recent report of the Commission on this. As you will see, Romania is not alone in this fight..

Best Regards
Frederic

Frederic Donck
Director European Regional Bureau
Internet Society

www.isoc.org

Le 28 juin 2011 à 22:19, Eduard Tric a écrit :

> Thank you Costas,we are aware about the info you provided , but why cannot experts admit just for once that there is something wrong with this directive ? The isp's tell us it's wrong, the telcos providers tell us it's wrong, the associations of user protection the same.
> Moreover , the constitutional Court remarks and EU directive are  in 180 degrees opposite directions , we don't see  a miracle solution in proposing another law, as the problem rised by the court comes from the directive. The transposition of aquis is pretty standard legal stuff , there is very little marge in the implementation. So what would be the solution ? If we put isoc name on the new law and the new law will not pass the pairlement , senate and Constitutional Court we will loss credibility. If we do nothing it would not help the EU netizens that we represent, as this problem was already largely discussed on the list.
> Best regards,
> Eduard
>  
> 
>  From: Costas Popotas <cpop at txt.gr>
> To: Eduard Tric <eduard.tric at isoc.ro>; Marta Dias <marta at fccn.pt>; 'Chapter Delegates' <chapter-delegates at elists.isoc.org>
> Sent: Tuesday, June 28, 2011 10:18 PM
> Subject: Re: [Chapter-delegates] Isoc ,Eu Directive on data retention and Romanian Law request for comments
> 
> I intervene as an outsider but expert in EU law. When Romania joined EU it accepted the "acquis communautaire" the preexisting legal framework , thus the obligation to amend its legislation in domains contravening EU secondary legislation  according to the principle of supremacy of EU legislation. But as I understand it, the Romanian Court did not declare unconstitutional the EU directive (which they could have done since they have no such competence) they declared unconstitutional the national legislation implementing the directive. A directive is a broad framework stating the objectives to be attained leaving to the member state the responsibility of the means adopted. This means simply  new legislation has to be adopted in conformity with both EU directive and the national constitution. Nothing dramatic of revolutionary this has been done several times in the past elsewhere.
>  
> The end of a beautiful friendship has meaning only if a member state drops out of the EU.
>  
> best
>  
> Costas Popotas
> Luxembourg 
> ----- Original Message ----- .
> From: Eduard Tric
> To: Marta Dias ; 'Chapter Delegates'
> Sent: Tuesday, June 28, 2011 3:36 PM
> Subject: Re: [Chapter-delegates] Isoc ,Eu Directive on data retention and Romanian Law request for comments
> 
> Hi Marta , Thanks for the info, Portugal did their homework just like any other member state. 
> What is interesting in Romania is that this law (and implicit the directive ) is unconstitutional.
> The Directive  2006/24/EC  was made before EU enlargement, Romania never voted for it , so it should be modified. 
> As a general rule , any  directive declared unconstitutional by a member state should be modified. 
> EU is a union of sovereign states and should never act as a super-state, or it will be "the end of a beautiful friendship" , to mis-quote from Casablanca..
> Regards,
> Eduard
> 
> From: Marta Dias <marta at fccn.pt>
> To: 'Eduard Tric' <eduard.tric at isoc.ro>; 'Chapter Delegates' <chapter-delegates at elists.isoc.org>; 'Frederic Donck' <donck at isoc.org>; 'Christopher Wilkinson' <cw at christopherwilkinson.eu>
> Sent: Tuesday, June 28, 2011 4:15 PM
> Subject: RE: [Chapter-delegates] Isoc , Eu Directive on data retention and Romanian Law request for comments
> 
> Hi,
> In Portugal Law 32/2008, transposes into national law Directive 2006/24/EC of Parliament and the Council of 15 March on the retention of data generated or processed in the context of provision of electronic communications services or of public communications networks. Under this law the operators are required to retain the data for a one year period (from the date of the conclusion of the communication).
> Best regards,
> Marta M. Dias
> ISOC.PT
>  
>  
> From: chapter-delegates-bounces at elists.isoc.org [mailto:chapter-delegates-bounces at elists.isoc.org] On Behalf Of Eduard Tric
> Sent: terça-feira, 28 de Junho de 2011 13:51
> To: Chapter Delegates; Frederic Donck; Christopher Wilkinson
> Subject: [Chapter-delegates] Isoc , Eu Directive on data retention and Romanian Law request for comments
>  
> As you probably know , the Romanian Constitutional Court has declared in 2009  Unconstitional the Romanian  transposition of the Eu Directive on Data retention (romanian law 298/2008). As a reminder , this directive asked to retain for 6 months (expenses paid by the operators ) any telecommunication data, including and not limited also to internet data.
>  
> Now the romanian government decided to have a more open approach , and are asking for input from civil society. We have 2-3 weeks to make an answer that is compliant to the Directive AND to the Constitutional court decision.
>  
> We would be  happy to take on our side input from other chapters, Isoc ECC,  Isoc HQ and European Bureau.
>  
> . As it is unlikey that in Romania other organisations will respond , we see this as an opportunity for ISOC , especially in preparation for  the Inet in Bucharest but also to mark a point and help to change this unuseful directive into a more citzien-oriented one. It's gonna be our first public policy-making position, so we want to be as accurate as possible.
>  
> Regards,
> Eduard Tric
>  
> References :
> http://www.mcsi.ro/Transparenta-decizionala
> http://www.mcsi.ro/Transparenta-decizionala/24/ProiectRetinereaDatelor
> http://www.mcsi.ro/Transparenta-decizionala/24/ExpunereMotive
> Eu Directive 2006/24/CE with modification on 2002/58/CE  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006L0024:EN:HTML
> romanian law 298/2008  http://www.legi-internet.ro/legislatie-itc/date-cu-caracter-personal/legea-2982008-privind-pastrarea-datelor-de-trafic-informational.html
>  
> Eu commision letter from 16-th of June 2011 reminding the necessity of transponding the directive  2006/24/CE
>  
>  
>  
> 
> 
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