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Deutsch: Die Niederländische Regierung und die Vorratsdatenspeicherung

The answers of the Dutch Government to the additional set of questions sent by the Dutch Senate about the implementation of the Data Retention Directive reveal some interesting opinions. At the end of 2008 the Dutch Senate held a hearing with technical experts and a plenary debate about the implementation proposal later is expected this Spring.

The Dutch Government sees the current proposal for data retention as being of a limited nature. It already points to a possible extension of data retention at the European level, in particular a drastic extension of data retention obligations with regard to online communications, as well as its term.

Also the Government downplays the interference with fundamental rights: "The risk of the interference with the private life of data subjects consists primarily of the image that these data provide of communicative behavior. On that point, there is little difference with the specified bills that telecom providers offer as an extra service. In addition, there is a risk of linking the data to criminal activity of persons. However, a similar risk is also present in the context of requests for license plate information by the police. The Criminal Procedural Code stipulates strict conditions for the access to data by law enforcement officials. The above does not alter the fact that subjects have a right that the data about their communications are being processed with exceptional care."

No responsibility is taken by the Dutch government to legitimate the interference with fundamental rights but points towards the European legislature: "With regard to the necessity of the interference in a democratic society, there is a margin of appreciation for the member states. The data retention obligation, however, follows from a European directive and the (Dutch) data retention term falls within the limitations of the Directive."

At the same time, the government endorses the judgement of the ECJ and gives the primary argument why the Court should have struck it down. The government states explicitly why differences between data retention obligations between the member states cannot harm the competitiveness within the internal market. There is still a level playing field. The negative effects on the internal market were the reason why the directive was legally adopted (in the ECJ's eyes).

Another interpretation of the data retention directive is given in a recent answer from the European Commission to a question asked by MEP Alexander Alvaro which shows that the data retention directive does not cover services provided free of charge. The answer points to the wording of Article 50 of the Treaty establishing the European Community that "does not require that the remuneration for the service is charged to the user or subscriber of the service; it covers also cases where remuneration is paid by a third party. The definition covers in particular services of a commercial character. On the other hand, an activity which is not of an economic or commercial character itself or linked to such an activity does not constitute a service in the meaning of the Treaty" and thus is not subject to the directive provisions.

Dutch Government already thinks about extending data retention at European level (14.04.2009)
http://www.jorisvanhoboken.nl/?p=269

Answers from the Dutch Government (only in Dutch, 9.04.2009)
http://www.eerstekamer.nl/behandeling/20090409/nadere_memorie_van_antw...

Written question by Alexander Alvaro (ALDE) to the Commission: Subject: Services provided free of charge in the context of data retention (18.02.2009)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-...

E-0969/09EN - Answer given by Mr Barrot on behalf of the Commission (16.04.2009)
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2009-...

(Thanks to EDRi-member Joris van Hoboken - Netherlands)