Brussels, 01/06/2011 (Agence Europe) - The European directive on data retention (telecoms) does not meet the requirements imposed by the fundamental rights to privacy and data protection, said European Data Protection Supervisor (EDPS) Peter Hustinx in an opinion delivered on 31 May. The 2006 directive requires telecoms operators to store traffic and location data of the communications of all EU citizens, for example, the source, destination, date, time, duration and type of communications and the location of mobile communication equipment, for possible law enforcement purposes.
On 18 April, the Commission said in an evaluation report that this directive, the principles of which have raised problems in several national constitutional courts (in particular, in Germany and Romania), remained a useful instrument in the fight against terrorism and serious crime but it pointed, too, to privacy and fundamental rights issues that had to be resolved.
In his opinion, the EDPS is pleased “that the Commission took into account the implications of the directive for the fundamental rights to privacy and data protection, especially in view of the criticisms that have been levelled concerning the privacy-intrusive nature of the directive”.
On various occasions, the EDPS has said that “the availability of traffic and location data can play an important role in criminal investigations”. However, he has also repeatedly expressed “serious doubts about the necessity for retaining data on such a large scale in light of the rights to privacy and data protection”.
After careful analysis of the evaluation report, the EDPS takes the view that the directive “does not meet the requirements imposed by the fundamental rights to privacy and data protection, mainly for the following reasons: - the necessity for data retention as provided in the directive has not been sufficiently demonstrated; - data retention could have been regulated in a less privacy-intrusive way; - the directive leaves too much scope for member states to decide on the purposes for which the data might be used, and also for establishing who can access the data and under which conditions”.
Hustinx says: “Although the Commission has clearly put much effort into collecting information from the member states, the quantitative and qualitative information provided by the member states is not sufficient to draw a positive conclusion on the need for data retention as it has been developed in the directive. Further investigation of necessity and proportionality is therefore required, and in particular the examination of alternative, less privacy-intrusive means”.
The Evaluation Report will now play a role in possible decisions on amending the directive. The EDPS calls for the Commission to seriously consider all options in this further process, including the possibility of repealing the directive, whether or not combined with a proposal for an alternative, more targeted EU measure. (S.P./transl.rt)