Member States, including France, Belgium, Ireland and Denmark, are reportedly seeking to circumvent the Court of Justice of the EU’s judgments on the ban on the retention of telecommunications data for mass surveillance purposes, according to leaked documents in the German media, reported on 22 March by German MEP Patrick Breyer (Greens/EFA).
The MEP is particularly concerned about the work of the High-Level Group set up in mid-February by the Swedish Presidency of the EU Council on access to (telecoms) data by law enforcement agencies, which aims to remedy both these rulings and the lack of European legislation on the subject.
“In the EU, I observe a dangerous cycle in which national governments use all sorts of tricks to keep illegal mass surveillance going”, the MEP commented in a statement. And the Commission should start “enforcing the landmark rulings, instead of plotting to bring back data retention”.
The Court of Justice has ruled that exceptions to the ban on blanket mass surveillance are only allowed under strict conditions, but several recent laws, such as in Belgium, “allow for the continued mass retention of data”, according to the MEP. France is also said to be pushing for exemptions in the ‘e-privacy’ regulation for the benefit of intelligence services to allow this generalised surveillance. The Member States have taken a position on this High-Level Group and their responses have been compiled in a note from the Council of the EU dated 20 March, as seen by EUROPE. In it, the French authorities stress that “the challenges faced by the competent services are multiple, whether it is the generalisation - which is not contested in principle - of the encryption of electronic communications, access to digital evidence stored in data warehouses outside the European Union, the complexity of jurisdictional competences to deal with phenomena or the need to have a clear legal framework for the conservation of connection data and to preserve the effectiveness of investigative tools”. France also calls for this group to lead to a common framework for data retention and access that is balanced with the requirements in terms of prevention and repression sought by the Member States. “In any case, the High-Level Group of Experts should not be a tool for transposing the now constant case law of the CJEU on data retention and access in a law enforcement context, but should be a body that will propose concrete orientations to face the challenges and difficulties that internal security forces are facing in this area”. For Belgium, it will “probably be best to limit the subjects (of the High Level Group) to what is most pressing. In that respect, we believe that further work on encryption and data retention should be prioritised”.
Link to the Council document: https://aeur.eu/f/5ze (Original version in French by Solenn Paulic)