On 22 June 2005 the Dutch Erasmus University published a report about the usefulness and necessity of data retention for law enforcement purposes. The report is the first public research in Europe into the actual use by law enforcement of historical traffic data.
The researchers looked at 65 police investigations that were provided by the Dutch ministry of justice as good examples of the usefulness for traffic data for law enforcement. They conclude 'in virtually all cases' the police could get all the traffic data they needed, based on average availability of telephony traffic data of 3 months. The researchers also warn they can't qualify the usefulness of these data as direct or indirect evidence, or the representativeness of the sample of cases for law enforcement in general.
But after failing to meet this essential test, the researchers organised talks with several anonymous police representatives. Based exclusively on those talks, the report recommends 1 year mandatory data retention, for Internet even to a much wider extent than the current European proposal. Besides logging every incoming and outgoing IP-request from each customer's computer(s) and registering every service used by customers, ISPs should also log URLs and the obligation should be extended to hosting providers and internet-cafes. On the other hand, the report mentions no need at all for data about modern messaging services, such as SMS, EMS and MMS, or new data services such as GPRS and UMTS, or failed caller-attempts.
Dutch EDRI-member Bits of Freedom immediately issued a press release stating that the report can only be qualified as a police wish-list, without any substantial evidence for the necessity of data retention. Members of the special European Legal Affairs Committee of the Senate debating on the report on 28 June 2005 clearly agreed with this vision. In a unique confrontation with his own christian-democrat minister of Justice, MP Hans Franken thoroughly blasted the report and the decision making process so far. Fully supported by the other government coalition partner (right-wing liberals) and the major opposition parties, he said the government completely failed to meet the essential proportionality test decreed by Article 8 of the ECHR. The government did not prove the necessity, did not consider any less infringing alternatives to general data retention, and did not do any valid investigation into the costs and economic impact of the proposal. Last but not least, the government apparently did not consider the effectivity. The 68 year old Franken clearly caught the minister by surprise when he summed up a long list of technical problems with the proposal, especially in connection with Internet and new data services provided by mobile operators. He mentioned the astronomical amount of data handled by ISPs, explained that data retention requires a full internet wiretap on every user, and mentioned cost calculations amounting to a 7 million euro initial investment for a small Dutch ISP with a 2.5% market share. Franken also pointed at the wider context, both technically with IPv6 and Voice over IP replacing regular telephony networks and internationally, with no similar obligation planned for providers in the United States and an abundance of choices for internet-users to use proxies or encrypt all traffic.
Minister Donner could only stammer a reply that cost calculations differed a lot and for example Denmark had a very effective data retention law, with much lower costs. MP Franken didn't let that pass, and told the minister there was indeed a framework law in Denmark decreeing data retention, but the law had not materialised in a specific decree yet. That left the minister with no other argument than a reference to the next informal JHA meeting, in Newcastle on 8 September 2005, where besides police officials apparently also representatives from the telecom-industry will be given a chance to explain their problems with the proposal.
Both chambers of parliament will debate the Erasmus report in depth in September 2005, but only after they have jointly been coached to the right opinion by a presentation by the Public Prosecutors department and police commissioners. Meanwhile, the European ministers of Justice and Home Affairs will continue to work on the proposal, with a next meeting of the working party of government officials planned on 4 and 5 July 2005 and the UK presidency of the EU already having warned several members of the European Parliament their resistance is futile, since the UK is set on creating mandatory data retention via Europe after they failed nationally.
Report Erasmus University (in Dutch only, 22.06.2005)
http://www.justitie.nl/Images/20050620_5357934b%20aanbieding%20rapport...
Press release Bits of Freedom (in Dutch only, 22.06.2005)
http://www.bof.nl/docs/persbericht_bewaarplicht_21062005.pdf