Discussion On Traffic Data Heating Up

According to the Dutch privacy watchdog traffic data must be treated as confidential communication - EU still undecided

According to the Dutch privacy watchdog De Registratiekamer, traffic data of Internet and telephone communications should fall under the scope of the constitutional right of confidential communication.

The Dutch government has proposed to make confidential communication part of the constitutional rights of Dutch citizens. A breach of this confidentiality is only allowed under specific circumstances, for instance the interception of communication by the law enforcement authorities. A court order is needed every time the police want to intercept communication.

The privacy watchdog however states that traffic data should also fall under the scope of the right of confidential communication. It points at a ruling of the European Court of Human Rights in Strasbourg that stipulated in 1984 that the dialling of a phone number is an integral part of a phone conversation. The provision of traffic data to the police without a proper court order therefore was a violation of article 8 of the European Convention on Human Rights, according to the court.

According to the Registratiekamer, the right of confidential communication should enclose the content of communication as well as the 'in many occasions equally important data on who called when and where with whom'. If freedom and confidentiality of communication only means the government is restricted in its powers to listen in to the content of the communication, but gives wide powers to monitor the traffic data, than 'the protection of the right of confidential communication is not properly assured'. The Registratiekamer states that this is even more the case as traffic data will become more and more available in the telecommunication infrastructure of the digital area:

In Europe, the battle is heating up on the issue of traffic data. The European Commission proposed last year a ' Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector' (Directive in German). Article 6 of this directive says that 'traffic data relating to subscribers and users processed for the purpose of the transmission of a communication and stored by the provider must be erased or made anonymous upon completion of the transmission'.

According to a document of the European Working Party on Police Co-operation, published in the Statewatch Bulletin, various delegations (Belgium, Denmark, France, Netherlands, Sweden and United Kingdom) 'expressed misgivings' about the implications of this article. 'That provision would render it impossible to monitor the recent activities of persons under investigation since information on their communications would not be available. The ability to retrieve and rapidly obtain data on communications is of major importance in solving crime,' the report states.

The work on this directive is already well advanced. It must be incorporated into national legislation before 31 December 2001. The Police Working Party therefore urges the judicial authorities of the Member States to 'take into account the serious consequences of the Directive' and bring them to the attention of the authors of the Directive.

In the latest communication on cybercrime, 'Creating a Safer Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime' (PDF-File), the European Commission does not take a stand on the sensitive issue of traffic data. It just states these difficult questions have first to be discussed by law enforcement agencies and the industrial world, to find acceptable solutions, which balance rights and obligations.

During a hearing last month on the proposals of the European Commission, a British police official declared that the European privacy rules block the investigation into child pornography. A British investigation into an alleged international child porn ring of five hundred members is on a dead end because Internet providers don't store the traffic data, the police official stated.