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Deutsch: Diskussion der Vorratsdatenspeicherung quer durch Europa

While in Germany the Minister of Justice rejects the current data retention regime, Sweden is preparing to implement it. In the meantime, the European Commission is organizing a public debate on the review of the directive, but has delayed its final report on the revision.

The Swedish Government has proposed a draft law to implement the data retention directive, asking for a six month period of keeping the trafficdata of electronic communications. Justice Minister Beatrice Ask considers that it is "important for us to create adequate protection for personal integrity" and this is why Sweden has opted for the minimum period allowed by the EU directive.

The European Commission (EC) has already started the review of the data retention directive, but decided to postpone the report after it failed to obtain from member countries enough evidence to show why the directive is needed. "The data retention directive is a totally failed initiative," EDRi's Joe McNamee told Deutsche Welle. Now the EC has invited all relevant stakeholders to a conference in Brussels on 3 December 2010 in order to "finalise the evaluation of the Directive and to start the process of its review".

In Germany, the head of the Federal Criminal Police considers that its country should re-enact the data retention law. But the German Minister of Justice Sabine Leutheusser-Schnarrenberger has supported the position of the civil society which is against such a measure. Moreover, she has informed the German Working Group on Data Retention (AK Vorrat) that she supports their position that if the EU Commission wants to uphold the data retention policy entirely, the EU must at least leave it to national parliaments and constitutional courts to decide whether they wish to implement this policy or not. "I am permanently in touch with the EU Commission and will take your arguments into account in our upcoming discussions", Leutheusser-Schnarrenberger assured the Working Group.

The AK Vorrat press info also points to the recent ruling of the European Court of Justice that considered "limitations in relation to the protection of personal data must apply only in so far as is strictly necessary". It ruled as "invalid" EU requirements to publish every recipient of agricultural subsidies in the EU, deciding that this indiscriminate policy "exceeded the limits which compliance with the principle of proportionality imposes". "(I)t is possible to envisage measures which affect less adversely that fundamental right of natural persons and which still contribute effectively to the objectives of the European Union rules in question", the Court held.

"The EU must now also abandon the disproportionate practise of indiscriminate retention of records on any communication, lest the EU Court of Justice rule the EU data retention directive invalid, too", comments Patrick Breyer of the Working Group on Data Retention. "The targeted preservation of suspect data is much less invasive and still contributes effectively to the prosecution of crime. The practise of most states world-wide demonstrates that EU rules stipulating the indiscriminate retention of records on any phone call, mobile phone location and Internet connection in the EU is not 'strictly necessary', but violates our right to respect for our private lives as guaranteed in the EU Charter of Fundamental Rights. It is not only the EU Court of Justice but also national constitutional courts and the European Court of Human Rights that have in the past ruled invalid indiscriminate intrusions into the personal lives of innocent citizens."

Six EU member states have refused to transpose the controversial 2006 EU data retention directive; in two more EU Member States constitutional courts have annulled data retention laws, finding them incompatible with fundamental rights.

The Canadian Government also distanced itself from the controversial EU data retention policy. It announced plans to "create a preservation order that would require a telecommunication service provider to safeguard and not delete its data related to a specific communication or a subscriber when police believe the data will assist in an investigation." "This is not data retention", the Department of Justice pointed out. Preservation orders would be "restricted to the data that would assist in a specific investigation."

German Minister wants to end EU-wide communications data retention (11.11.2010)
http://www.vorratsdatenspeicherung.de/content/view/405/79/lang,en/

Conference "Taking on Data retention" - 3 December 2010
http://www.dataretention2010.net/init.xhtml?event=31

Sweden falls in line with controversial EU data retention rules (12.11.2010)
http://www.dw-world.de/dw/article/0,,6223369,00.html

European Court of Justice cases C-92/09 and C-93/09 (9.11.2010)
http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&am...

Canada Backgrounder : Investigative Powers for the 21st Century Act (11.2010)
http://www.justice.gc.ca/eng/news-nouv/nr-cp/2010/doc_32567.html