20201007 Gezielt ermitteln statt total erfassen!

07.10.2020 Gezielt ermitteln statt total erfassen!

Open letter from civil society and a critical ECJ ruling

Just in time, more than 40 NGOs from Europe, including Aktion Freiheit statt Angst, have written to several EU commissioners, warning of new plans for a European Data Retention Directive (VDS). Unfortunately, the European Court of Justice yesterday handed down a further ruling on the VDS, in which it weakened the previous line of a general ban on data storage without cause.

The now created gap is narrow, e.g.

an EU state must feel seriously threatened and
a judge must approve the encroachment on fundamental rights and
the measure may only be carried out for as long as absolutely necessary.

Well, we know that the fear of terror that has been widespread for 20 years - i.e. always. Poland, Hungary, Italy, etc. feel threatened by some refugees. The salami is cut off further ...

Patrick Breyer, civil rights activist and MEP for the Pirate Party, comments on today's ECJ rulings on data retention:

"Under massive pressure from governments and intervention agencies, the judges have partially abandoned our protection against suspicious communications capture: The permitted IP retention of data makes it possible to investigate the private Internet use of normal citizens for months. Criminals can easily circumvent this total recording with anonymization services, but it makes the normal user transparent. According to a recent study, even the restricted retention of personal contacts and movements that is permitted today has no measurable effect on the investigation of serious crimes, but prevents confidential advice from lawyers, for example, and threatens the free press, which is dependent on anonymous whistleblowers."

Therefore the European civil society demands in its open letter:

The current German telecommunications data retention law must not be taken as a model law for the EU.
We urge the Commission not to pursue any attempts to reintroduce telecommunications data retention.
We urge the Commission to open infringement procedures to ensure that national data retention laws are repealed.
We appeal to the Commission to work towards an EU-wide ban on blanket and indiscriminate data retention practices that capture peoples activities.

The Open Letter:

Joint letter to Ylva Johansson, European Commissioner for Home Affairs
Thierry Breton, European Commissioner for the Internal Market
Didier Reynders, European Commissioner for Justice
Margrethe Vestager, European Commission Vice-President

Dear …,

we are deeply concerned over announcements [1] that the Commission intends to assess the need for further action on communications data retention once the judgments in pending cases are delivered. On 9 December 2019 Commissioner Johansson said [2]: “I do think that we need legislation for data retention.” A study on “possible solutions for retaining data” has been commissioned. The German digital rights NGO Digitalcourage regards the study’s design [3] as biased as it does not reflect on the threats of telecommunications data retention.

Blanket and indiscriminate telecommunications data retention is the most privacy-invasive instrument and possibly the least popular surveillance measure that was ever adopted by the EU. The EU Data Retention Directive mandated the indiscriminate collection of sensitive information about social contacts (including business contacts), movements and the private lives (e.g. contacts with physicians, lawyers, workers councils, psychologists, helplines, etc.) of 500 million Europeans that are not suspected of any wrongdoing.

In its judgment of 8th April 2014 the European Court of Justice (ECJ) annulled the data retention directive 2006/24 which had required telecommunications companies to store data about all of their customers' communications. But it is still implemented into national law in various member states of the European Union.

We believe that such invasive surveillance of the entire population is unacceptable. With a data retention regime in place, sensitive information about social contacts (including business contacts), movements and the private lives (e.g. contacts with physicians, lawyers, workers councils, psychologists, helplines, etc) of millions of Europeans is collected without regard to individual suspicion. Blanket and indiscriminate telecommunications data retention has proven harmful to many sectors of society. Telecommunications data retention undermines professional confidentiality, creates the permanent risk of data losses and data abuses and deters citizens from making confidential communications via electronic communication networks. It undermines the protection of journalistic sources and thus compromises the freedom of the press. Overall it damages foundations of our open and democratic society. In the absence of a financial compensation scheme in most countries, the enormous cost of a telecommunications data retention regime must be borne by the thousands of affected telecommunications providers. This leads to price increases and to the discontinuation of services, creating indirect burdens on consumers.

Studies prove that the communications data available without data retention are generally sufficient for effective criminal investigations. Blanket data retention has proven to be superfluous, harmful or even unconstitutional in many states across Europe, such as Austria, Belgium, Germany, Greece, Romania and Sweden. These states prosecute crime just as effectively using a targeted collection of traffic data that is needed for a specific investigation, such as the data preservation regime agreed in the Council of Europe Convention on Cybercrime.

We argue that the current German telecommunications data retention law must not be taken as a model law for the EU. Firstly, there are various constitutional complaints pending against the law and secondly, the German law follows the same fundamentally hazardous approach of collecting data about every citizen continually and without any regard to individual suspicion, threat or need.

There is no proof that telecommunications data retention provides for better protection against crime. On the other hand, we can see that it costs billions of euros, puts the privacy of innocent people at risk, disrupts confidential communications and paves the way for an ever-increasing mass accumulation of information about the entire population.

As representatives of the citizens, the media, professionals and industry we collectively reject the blanket retention of telecommunications data. We urge you not to pursue any attempts to reintroduce telecommunications data retention. At the same time we urge you to open infringement procedures to ensure that national data retention laws are repealed in all member states concerned. Furthermore we appeal to you to work towards an EU-wide ban on blanket and indiscriminate data retention practices that capture peoples activities. We call on you to develop the European way so that it leads to an EU free of invasive surveillance. We should be happy to discuss the matter with you personally at your convenience.

Yours faithfully,

– – – – –
[1] https://www.europarl.europa.eu/RegData/questions/reponses_qe/2020/000389/P9_RE(2020)000389_EN.pdf
[2] https://www.europarl.europa.eu/RegData/questions/reponses_qe/2019/004385/P9_RE(2019)004385_EN.pdf
[3] https://digitalcourage.de/blog/2020/data-retention-biased-study-by-the-eu-commission
https://digitalcourage.de/blog/2020/vorratsdatenspeicherung-einseitige-studie-der-eu-kommission
[4] EDRi: Data Retention Booklet: https://edri.org/our-work/launch-of-data-retention-revisited-booklet/