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2002
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Statewatch News online: European Parliament to cave in on data surveillance
Statewatch News online: European Parliament to cave in on data surveillance
28 March 2012
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EU surveillance
of communications - running news feature (updated 30.5.02)
European
Parliament caves in on data retention
- The "unholy
alliance" of the PSE/socialist group and the PPE/conservative
group - who together have a large majority in the parliament
- today, 30 May, joined forces with the Spanish Presidency of
the EU and voted to accept the demands of EU governments and
law enforcement agencies to place telecommunications under surveillance.
The rapporteur (M Cappato), the ELDR (Liberals), Green/EFA group
and the GUE (United Left) voted against.
In the decisive
vote on the second part of amendment 46 (split vote on data retention)
the result was 351 votes in favour (PPE, PSE UEN), 133 against
(ELDR, Greens, GUE and TDI) with 13 abstentions (some PPE, PSE).
see also:
EP voting figures and analysis
On
this issue no "compromise" is possible
Either MEPs vote
in favour of maintaining the existing 1997 Directive which only
allows traffic and location data to be kept for billing purposes
(ie: for the benefit of customers)
or they vote in favour
of data being retained so that EU law enforcement agencies (police,
customs, immigration and internal security agencies) can get
ongoing access to it.
In an interview with
Washington Internet Daily
(28.5.02)
an assistant, Fabriza Panzetti, to PSE (Socialist MEP) Elena
Paciotti said that although they has opposed data retention a
"compromise" was now necessary as the EU governments
refused to delete the provision.
The rationale of the PSE (Socialist group) and PPE (conservative
group) to try and "sell" the "compromise"
negotiated in secret with the Council (the 15 EU governments)
is that the amendment in their name to Article 15.1 (amending
the 1997 EU Directive on privacy in telecommunications) is the
best that can be achieved. The only "compromise" seems
to be that these groups have "caved-in" to the demands
of the Council and the EU's law enforcement agencies' - the Council
has not had to "compromise" at all.
Letter from Elena Paciotti (PSE,
socialist group MEP) defending the PSE groups about-turn
(sent to the 40 signatories of the letter from
the civil society
Coalition
against data retention
on 28 May)
"Dear
friends,
Concerning your open letter addressed to the President of the
European Parliament and to all the Members of this House, let
me tell you that I fully share many of the concerns you voice.
It is exactly by keeping these concerns in mind that we have
been working on the text of the amended directive for the past
few months, in cooperation with European Data Protection authorities.
We have been striving to have the proposed text amended, and
the final proposal would appear to provide a few safeguards.
Indeed, it
should be pointed out that the derogations referred to in the
text are actually already provided for in the current wording
of Article 14 of directive 97/66, and that only few EU countries
have already passed legislation transposing that Article.
The current
proposal is an improvement over both the text of the directive
as it stands and the common position. The text of the compromise
amendment - as accepted also by the EC Commission and Council
- indicates that all restriction to the rights and obligations
set out in the directive on the protection of privacy in the
electronic communications sector must respect the principles
set out by the European Court of human Rights, i.e.: that such
measures must constitute "a necessary, appropriate and proportionate
measure within a democratic society to safeguard national security
...". As to the possibility to retain traffic data,
the compromise specifies that this can be decided only through
"legislative measures" and is allowed only "for
a limited period". In the end it affirms that "All
the measures referred to in this paragraph shall be in accordance
with the general principles of Community law including those
referred to in Article 6 paragraphs 1 and 2 of the Treaty on
European Union".
Furthermore
recital 11 says that all these measures shall be "in accordance
with the European Convention of Human Rights and Fundamental
Freedoms as interpreted by the rulings of the European Court
of Human Rights.".
I am aware
that this
final proposal is not fully satisfactory, but
a compromise solution seldom is. Additionally, this is a derogation
- which is allowed as an exception on a local (national) basis.
Like all derogations, it has to comply with very stringent, selective
prerequisites. Based on these premises, I and my group are and
have always been committed in ensuring that the European Parliament
verifies, with the greatest care and in cooperation with Data
Protection authorities, that the national transposition of this
derogation is in line with the general principles I have just
mentioned.
I'd also like
to draw your attention to the fact that the core of this directive
is the safeguard of the fundamental right to the protection of
personal data in the internal market: on this I think it's essential
to allow each citizen to choose whether his/her personal data
can or cannot be freely treated and used by businesses. This
fundamental right can be adequately guaranteed only by allowing
all users to make this decision before their data are included
in public directories or used for sending unsolicited e-mails.
I wish to
thank you for your interest in the activity of the European Parliament;
please rest assured that we are very keen on this issue and will
keep the matter in the focus of our attention.
I look forward
to your comments and remain
Yours sincerely
Elena Paciotti MEP (Shadow Rapporteur PSE group)"
Statewatch
comments
1.
On this
issue no "compromise" is possible
. Either MEPs
vote in favour of maintaining the existing 1997 Directive which
only allows traffic and location data to be kept for billing
purposes (ie: for the benefit of customers) or they vote in favour
of data being retained so that EU law enforcement agencies (police,
customs, immigration and internal security agencies) can get
access to it.
2. The references
in the PSE/PPE amendment to the European Convention on Human
Rights and to the general principles of Community law in Article
6 of the Treaty on European Union (TEU) are presented as constitutional
safeguards. However,
the inclusion of these references are
simply "window-dressing" as the ECHR, the TEU and Community
law apply automatically to any EU Directive
and therefore
gives no additional protections. Moreover, the European Court
of Justice also automatically has a say in the interpretation
of the Directive - cases on the national application of the Directive
could go to both the European Court of Justice (Luxembourg) and
the European Court of Human Rights (Strasbourg). This is why
the Council is quite happy to agree to the inclusion of these
references as they do not affect in any way their demand for
data retention for law enforcement purposes.
3. This measure
is not needed to combat terrorism or serious criminal investigations,
these powers already exist under the 1997 Directive (as the Council's
own Legal Service advised before Christmas).
4. The EU Data
Protection Commissioner and the Article 29 Working Party on Data
Protection have always been opposed to this measure.
5. The European
Commission's original proposal was simply to introduce a number
of uncontroversial changes to the 1997 Directive. It too was
opposed to the measure to introduce data retention and only withdrew
its opposition in December.
6. The fact that
PSE/PPE amendment is acceptable to the Council and now the European
Commission is irrelevant - it is the job of the European Parliament,
where necessary, to stand out against the pressure from the other
two Brussels-based institutions especially on an issue so fundamental
to privacy and democratic standards.
7. To suggest
that surveillance should be "appropriate and proportionate"
is quite meaningless in reality. One has to assume that MEPs
have been aware of the debate on the surveillance of telecommunication
which has been going on since at least 1997: Discussions in G8
(attended by key EU states), ILETS (International Law Enforcement
Telecommunications Seminar) and Council working parties have
been discussing "limited periods" of between 12 months
and seven years (renewable). Moreover, in the post-11 September
period what is "appropriate and proportionate" is potentially
limitless.
8. The PSE/PPE
amendment is patently not an "improvement" on the current
1997 EU Directive.
9. The vague
and general "safeguards" under the European Convention
on Human Rights are meaningless too, if MEPs are concerned and
serious that given the right to privacy Article in the ECHR then
they would not even be contemplating backing such a measure.
Moreover references to general principles such as adhering to
the ECHR are empty if the new law itself allows the retention
of data and access for the law enforcement agencies.
10. It is very
hard to give any credence to the idea that the PSE group care
about data protection, privacy or surveillance. They voted against
data retention in the Committee on Citizens's Freedoms and Rights
and in the November plenary last year and again in the Committee
on 18 April but in the critical vote on Thursday 30 May they
are intending to abandon their position and back the retention
of data.
11. The net effect
will be to fundamentally undermine data protection laws put into
place so painstakingly during the 1990s. Moreover, if people
become aware that all their communications are being held on
record it will undermine confidence in e-mails and the internet.
As the UK Home Office Assessment put in:
"A balance
must therefore be drawn between security and privacy...
Data relating to
specific individuals under investigation will only be available
if data relating to the communications of the entire population
is retained"
12. The EU's
Police Chiefs Operational Task Force want data to be retained
and accessible for:
"research
purposes"
that is, not
in connection with any specific offence but in order to conduct
"fishing expeditions" on individuals or groups.
13. In his letter
to the EU institutions on 16 October one of George Bush's demands
was that the EU introduce data retention - a power that does
not exist in the USA even under the PATRIOT Act.
14. It might
be expected too that MEPs are aware of the EU governments intentions
on this issue. Since 1998 it has been clear that as far as they
are concerned the surveillance of telecommunications only works
if every EU state has the same laws and which operate in exactly
the same way - this is why a number of EU governments are working
on a draft Framework Decision which will be binding on every
Member State. Thus the claim that data retention requires a derogation
(ie: is non-binding) by each member state falls if all member
states are committed to the same policy.
Tony Bunyan,
Statewatch editor, comments:
"On this issue the majority
of MEPs seem likely to end up on the side of their governments
rather than on the side of the people and the democratic standards
they are meant to protect.
To be told
by the two largest groups in the European Parliament, the PSE
and PPE, that the inclusion of references to the European Convention
on Human Rights (ECHR) and EC Community law makes the EU governments'
demand for data retention and the surveillance of telecommunications
acceptable is sheer nonsense. The ECHR and Community law automatically
apply to all EU Directives and therefore reference to them is
simply "window-dressing".
To be told
too that this "compromise" is the best that can be
achieved - on an issue where no compromise is possible - because
the three Brussels-based EU institutions are all in agreement
simply tells us that they are not to be trusted with maintaining
and protecting basic democratic freedoms and rights. It is to
be hoped that each MEP will look to their conscience before they
vote "
Responses
by civil society groups
to Ms. Paciotti (PSE MEP, socialist group) to her letter of 28
May 2002
Story
filed 27.5.02
The amendment put forward by Ana Palacio (PPE, conservative group,
Spain) has now been signed too by Elena Paciotti (PES, Socialist
group, Italy) - the effect of the amendment to the EU Directive
on privacy and telecommunications is to back the EU governments'
demands for the retention of communications data and for access
to it by law enforcement agencies.
With this amendment
the EPP and now the PSE have abandoned the stance that the European
Parliament had taken in first reading (November 2001) and confirmed
at the second reading in the Committee on Citizens' Freedoms
and Rights (18 April 2002)
without getting any concessions
whatsoever from the Council of the European Union
(the 15
EU governments)
Tony Bunyan,
Statewatch editor, comments:
"The
EU governments already have all the powers they need under the
existing Directive to combat terrorism, this measure has nothing
to do with terrorism. The proposal by the EU governments is a
cynical exploitation of public sentiment to introduce draconian
powers to potentially place the whole population of Europe under
surveillance.
It took years
to agree and put in place the 1997 EU Directive on privacy in
telecommunications in every member state. The right to privacy
and freedom from surveillance once lost will be gone forever.
The European
Parliament took a principled stand in November 2001 and on 18
April. Now it appears that the two largest parties - the EPP
and PSE - may simply turn tail and accept the governments' demands.
It is the job of the parliament to defend to the hilt citizens'
freedoms and rights , it is to be hoped that each MEP will look
to their conscience before they vote. "
Story
filed 23.5.02
Today (23 May) the chair of the Committee on Citizens' Freedoms
and Rights (Ana Palacio, EPP, conservative group, Spain) lodged
a new amendment for the plenary session discussion (29 May) and
vote (30 May) in the European Parliament on the critical Article
15.1. in the proposal to amend the 1997 EU Directive on privacy
in telecommunications: Text of amendments: (
Word
) (
pdf
The wording of the proposed amendment by Ana Palacio is virtually
the same (two words have been transposed) as the one she proposed
on 18 April which is "acceptable" to the Council of
the European Union (the 15 EU governments) because it accepts
their demands that network and service providers retain traffic
and location data and that law enforcement agencies (police,
customs, immigration and internal security agencies) have access
to it:
European
Parliament committee chair tries to reach a "deal"
with the Council on the surveillance of communications
The EPP (conservative)
group are also claiming that the PSE (Socialist group) are backing
this so-called "compromise" amendment -
as these two groups together
form an outright majority it would lead to the European Parliament
backing the "war on terrorism" demands of the governments
as against the freedom, privacy and democratic rights of citizens.
Civil society's
opposition to data surveillance
This potential
"cave-in" by the European Parliament comes on the same
day (23 May) that a coalition of 40 civil liberties groups urged
MEPs to reject the idea of data retention:
Coalition asks European Parliament to
vote against data retention
. The STOP1984 campaign
has gathered more than 16,000 signatures from Internet users
in 60 countries opposed to the data retention proposal now before
the European Parliament:
STOP
1984 campaign
Article 15.1
- the different positions
1.
The Amendment
(rapporteur: Marco Cappato) agreed by the Committee on Citizens's
Freedoms and Rights on 18 April as its 2nd reading position,
maintaining the 1st reading position agreed in November 2001
(amending the Council's common position under 4 below) reads
as follows:
15.1. Member
States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article
6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive
when such restriction constitutes a necessary,
appropriate,
proportionate and temporary measure within a democratic society
to safeguard national security, defence, public security, the
prevention, investigation, detection and prosecution of criminal
offences or of unauthorised use of the electronic communication
system, as referred to in Article 13(1) of Directive 95/46/EC.
These measures shall be entirely exceptional and based on
a specific law which is comprehensible to the general public,
and shall be authorised by the judicial or other competent authorities
on a case-by-case basis. Under the European Convention on Human
Rights and the EU Charter of Fundamental Rights and pursuant
to rulings issued by the European Court of Human Rights, any
form of widespread general or exploratory electronic surveillance
is prohibited.
2.
The EPP/Ana
Palacio amendment to the above on 18 April and rejected by the
Committee on Citizens' Freedoms and Rights
(amending the
Council's common position under 4 below) reads as follows:
15.1. Member
States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article
6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive
when such restriction constitutes a necessary measure to safeguard
national security, (i.e. State security) defence, public security
or the prevention, investigation, detection and prosecution of
criminal offences or of unauthorised use of the electronic communications
system, as referred to in Article 13(1) of Directive 95/46/EC.
To this end Member States may inter alia provide for the retention
of data for a limited period justified on the grounds laid down
in this paragraph, in accordance with the general principles
of Community law, in particular the European Convention on Human
Rights and pursuant to rulings issued by the European Court of
Human Rights.
3.
The EPP/Ana Palacio amendment put forward on 15 May "acceptable"
to the Council
(amending the Council's common position under
4 below) reads as follows:
15.1. Member
States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article
6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive
when such restriction constitutes a necessary,
appropriate
and proportionate
measure
within a democratic society
to safeguard national
or State
security, defence, public
security, the prevention, investigation, detection and prosecution
of criminal offences or of unauthorised use of the electronic
communication system, as referred to in Article 13(1) of Directive
95/46/EC. To this end Member States may inter
alia adopt legislative
measures providing
for the retention of data for a limited
period justified on the grounds laid down in this paragraph.
All the measures included in this article shall be in accordance
with the general principles of Community law
including those
referred to in Article 6 paragraphs 1 and 2 of the Treaty on
European Union.
3a.
The new
EPP/Ana Palacio amendment put forward on 23 May: which will also
be "acceptable" to the Council
(amending the Council's
common position under 4 below) reads as follows:
15.1. Member
States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article
6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive
when such restriction constitutes a necessary,
appropriate
and proportionate
measure
within a democratic society
to safeguard national security, (ie: State security) defence,
public security, the prevention, investigation, detection and
prosecution of criminal offences or of unauthorised use of the
electronic communication system, as referred to in Article 13(1)
of Directive 95/46/EC. To this end Member States may inter
alia
adopt legislative measures providing
for the retention of
data for a limited period justified on the grounds laid down
in this paragraph. All the measures included in this article
shall be in accordance with the general principles of Community
law
including those referred to in Article 6 paragraphs 1
and 2 of the Treaty on European Union.
4.
The Council's
common position on data retention in Article 15.1, adopted 28
January
, reads as follows:
15.1. Member
States may adopt legislative measures to restrict the scope of
the rights and obligations provided for in Article 5, Article
6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive
when such restriction constitutes a necessary measure to safeguard
national security, (i.e. State security) defence, public security
or the prevention, investigation, detection and prosecution of
criminal offences or of unauthorised use of the electronic communications
system, as referred to in Article 13(1) of Directive 95/46/EC.
To this end Member States may inter alia provide for the retention
of data for a limited period justified on the grounds laid down
in this paragraph, in accordance with the general principles
of Community law.
Comment:
the Council's position
is intended to deflect criticism by arguing that the proposal
is non-binding and therefore up to each member state to enact.
This ignores the evidence on the record that the Council's plans
assume that every EU state allows the retention of data and allows
access to this for the "law enforcement agencies".
Background
At the plenary
session on 29-30 May in Brussels the European Parliament will
be discussing a crucial amendment to the position on the retention
of telecommunications data. The European Commission put forward
a proposal on 12 July 2000 to introduce a number of non-controversial
amendments to the 1997 EU Directive on privacy in the telecommunications
sector. By early last year it became clear that the Council intended
to use this opportunity to effect major changes to meet the long-standing
demands of the EU's law enforcement agencies (police, customs,
immigration and internal security agencies) for the retention
of all traffic and location telecommunications data (phone-calls,
e-mails, faxes and internet usage) and access to it.
In reaction to
11 September the Council decided that the issue of data retention
- not to combat terrorism but crime in general - should be a
priority.
In November 2001
the plenary session of the European Parliament adopted its 1st
reading position which opposed the Council's demands. After the
Council made its view known in December (it was formally adopted
on 28 January) the European Commission caved in and withdrew
its long-standing opposition. The proposal therefore returned
to the parliament for a 2nd reading and on 18 April the Committee
on Citizens Freedoms and Rights re-affirmed its opposition and
maintained its previous view, see:
he vote
in the Committee on 18 April
If the parliament maintains its position
the issue will move into the co-decision process and a conciliation
committee (involving the Council European Parliament and Commission)
will be set up.
As
Statewatch
has revealed, a number of EU governments are working on a draft
Framework Decision (under Article 34.2.b) to make it binding
on all 15 EU states to implement a new law requiring public communications
network or publicly available electronic communications service
to retain traffic and location data - as soon as opposition in
the European Parliament is overcome, see:
Binding Framework Decision
Background - Statewatch
News online
1. The vote in the European Parliament - voting figures by party
and analysis:
Vote
& analysis
2. European Parliament committee chair tries to reach a "deal"
with the Council on the surveillance of communications:
Report
3.
EU governments are secretly drafting a binding Framework Decision
to introduce the universal surveillance of telecommunications
(updated
9.5.02):
Report
4. Vote in Committee:
Narrow vote in European Parliament
on data retention
5. Statewatch summary:
European Commission sells out
6. Statewatch bulletin, January-February 2002:
Final decision
on surveillance of telecommunications
7. Statewatch report, up to 11 September:
Data protection or data retention
in the EU?
(pdf)
Background - Statewatch
Observatories on surveillance
8. EU-FBI
telecommunications surveillance system:
EU-FBI
9. Statewatch Observatory on Surveillance in Europe:
S.O.S.Europe
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