EDRI-gram has obtained 2 secret documents about the draft framework decision on data retention that unveil the positions of individual Member States when it comes to the scope, cost, scale and length of retention. The first document, published on the EDRI website, is the uncensored version of the latest draft framework decision from 24 February 2005, from the Working Party on cooperation in criminal matters to the Article 36 Committee. Both groups are made up of senior officials in the Justice and Home Affairs area, with the Committee in a general coordinating role for the Council.
In this document the Working Party reminds the Committee that the European Commission "had entered a scrutiny reservation on the legal basis for the proposal." Three explanatory paragraphs about the position of the Commission were deleted from the public version.
In these, the Presidency (Luxembourg) is quoted to say that the Commission has not yet provided a written position nor a proposal for a proper first pillar directive (with full co-decision rights for the European Parliament). Therefore the JHA Council will just proceed as planned, ignoring the severe legal protest. "The Presidency concluded that on the present basis work on the draft Framework Decision should continue in line with the conclusions drawn at the Council on 2 December 2004, and recalled that the European Council Declaration of 25 March 2004 provided that measures on retention of traffic data should be examined with a view to their adoption by June 2005."
The names of the individual Member States in the footnotes show which countries have lobbied the hardest for general surveillance of all citizens in the EU. For example Sweden wanted to extend the scope of data retention to all sorts of police cooperation (in stead of mere 'judicial' cooperation), while the UK wanted to reintroduce 'prevention' of crimes to the scope. The Belgian delegates expressed concerns about the provision in Article 7 allowing Member States to subject requests for hand-over of data to any conditions applying nationally. Belgium feared that some Member States would use the lack of dual criminality as an excuse not to hand over data to another country. Denmark was the only country who said they wanted to retain this provision.
The minutes of the Working Party for cooperation in criminal matters from 8 and 9 March 2005 provide even more insight in these debates between Member States. The Presidency has decided to eliminate national rules on the access to data from Article 7, in spite of protest by Denmark, Sweden, Germany, Austria, Ireland, the Netherlands, Malta, Lithuania and Latvia. "The second sentence will be cut and pasted in modified wording into a footnote explaining the position of some Member States who supported the conservation."
The Working Party had a difficult meeting on the issues of cost and scale and type of data to be retained. The notes from the first document show the Legal Service of the Council of Justice and Home Affairs Ministers expressed reservations about the plan to include a very broad functional list of data that should be retained, and in stead, proposed 'a technically more detailed list and a mechanism to revise that list'. Germany, Austria, Finland and Poland supported this position. The Czech Republic did not get any support for its efforts to change the specific list into a list of options out of which Member States could choose. The Presidency concluded that the framework decision should not become too specific, and possibly contain an attachment with technical specifications with a possibility to update that (mandatory) list. Germany and Austria tried to exclude unsuccessful connections, but were outnumbered by protests from a.o. Denmark, Malta, Spain and Slovakia.
Debating the length of retention, Italy seems to have finally won a majority for its 48 months maximum (in stead of 36 months), supported by France and Poland (in favour of not mentioning any maximum). Again, the Czech Republic found hardly any support for its attempt to get rid of the minimum period of 6 months. Only the UK saw some advantages, but Germany insisted on the minimum of 6 months, arguing that competition in the EU might be disturbed if Member States could opt for a lesser period. In the Czech Republic a new telecommunication law will enter into force on 1 May 2005, granting full cost reimbursement to providers for wiretapping and data retention. The draft Framework Decision leaves it entirely up to Member States to deal with the costs of data retention. Germany and the Netherlands found no support for their initiative to harmonise cost division in the EU (without giving any opinion on who should bear the costs, government or industry).
Last but not least, the delegates debated about access to data. Sweden proposed to limit access to "investigation, detection and prosecution of criminal offences", but Belgium immediately protested that providers should be able to use the data for commercial purposes. The Presidency supported this latter viewpoint, claiming that the provider is the owner of the data "and therefore it is difficult to limit its access to data."
The next JHA Council takes place on 14 April 2005, but the draft framework decision on data retention has been removed from the schedule. The next meeting of the Working Party takes place on 19 April 2005.
Uncensored report from the Working Party to the Article 36 Committee (24.02.2005)
http://www.edri.org/docs/uncensored.pdf