Data retention is a large and complex policy. In this briefing we have highlighted four problematic areas. But data retention is not just invasive, illegal, illusory, and illegitimate. It is bad policy with no clear goals.
Clear and open debate and deliberation has proven problematic for the governments who are seeking retention. This is why a harmonising measure is now being sought: in order to overcome all prior opposition and place blame on the 'unaccountable institutions' of the EU. Governments will return to their national parliaments claiming that they are compelled to introduce the illiberal practice of data retention because of EU obligations.
Proponents of retention believe that they have made the case for this policy. When the UK Presidency of the EU attempted to justify retention policy it pointed to cases of terrorism, murder, and torture. The UK Presidency argued that retention is used in serious crimes and cases involving terrorism, but failed to note that the language of the Framework Decision, and UK law, permitted its use for all investigations by many government departments. In all but one of the example cases presented by the UK Presidency, investigators would have had access to the data without any need for a retention policy.
Both the Commission and the Council cite a recent study on retention that although the vast majority of the retained data sought for investigations was less than six months old, "where data between 7 and 12 months old was required, it was used to investigate the most serious crimes, mostly murder". They both fail to clarify whether the sought data was conclusive evidence for the investigations or merely useful. With the billions of euros that will be required to implement data retention stronger evidence is required on the likely effectiveness of the scheme.
But it is not just a matter of cost-benefits. Despite the illusory gains described above, the retention of communications traffic data may be of use in some investigations. This is true of any invasive collection and retention of any form of personal information, whether fingerprints, DNA, medical records, financial records, religious information, travel details, sexual preferences, etc. All of this information could be kept indefinitely to aid the police in investigations, and the data would likely be of some assistance.
Therefore the European Parliament now faces a crucial decision. Is this the type of society we would like to live in? A society where all our actions are recorded, all of our interactions may be mapped, treating the use of communications infrastructures as criminal activity; just in case that it may be of use at some point in the future by countless agencies in innumerable countries around the world with minimal oversight and even weaker safeguards.
These proposals before you now are less invasive than previous versions. But they allow retention policies to be changed with minimal democratic scrutiny to include greater information storage. This is not a matter of the 'slippery slope' or 'thin end of the wedge'; but this will transform European law in an unprecedented manner. If the European Parliament approves data retention with even the strongest safeguards, it cannot prevent future Parliaments from undoing those safeguards.
We are already seeing Member State law that abandons the proposed safeguards. For instance, it is unlikely that the UK government will follow demands from the Commission to change existing British law to enhance safeguards on access to information. However, it is likely that the UK government will introduce mandatory data retention in accordance with EU obligations when it previously only managed to convince Parliament on a voluntary regime.
We the undersigned therefore call on the European Parliament to reject the Council and Commission proposals as an infringement of the civilised values and respect for human rights that underpin the European Union.