Telecommunication Council Wants New Investigation Into Privacy Rules

After the political climate has changed the battle is on about the length of the storage of traffic data

The European Ministers of Telecommunication decided on Monday in Luxembourg to investigate if the draft privacy rules of the European Commission on electronic communication should be revised. The United Kingdom and the Netherlands asked the Council to investigate if the proposed privacy rules still stroke 'the right balance between privacy and the needs of the law enforcement agencies in the light of the battle against terrorism.'

The European Commission proposed last year a ' Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector' (draft proposal). 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'.

The UK and some other Member States tried several times to change this article. According to a document of the European Working Party on Police Cooperation, published in the Statewatch bulletin, various delegations '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.

Till now these Member States didn't succeed in changing the rules. Last June, the Telecommunication Council reached a compromise on the Commissions Directive, with only small changes which gave the Member States more powers to set national rules on the storage of traffic data.

The European Parliament however suggested some amendments to enhance the privacy rules. The report from the Committee on Citizens' Freedoms and Rights (LIBE) on the proposed new Directive was rejected by plenary session of the European Parliament on 5 September by 204 votes to 129 with 155 abstentions (the primary reason for the report's rejection was the issue of "spam", unsolicited e-mails). The European Parliament is expected to come with a new report next month.

The European Council and the European parliament have to agree on the proposal of the Commission. The European parliament has the power to block the proposals. If Council and Parliament however come to a compromise, that text will come in force.

After the attacks of the 11th September, the political climate has changed. The Council has not taken a formal decision to alter the provisions of the directive. According to a Dutch spokesman, the Council only decided to study if there was a need of changing the directive. The Telecommunication Council of 6th December must decide on this point. So then the Council and the Parliament must trie to reach agreement on the base of the new position of the Council and the rewritten report of the European Parliament.

The move of the Dutch Government is strikingly, as the Netherlands were in favour of strong privacy rules and opposed suggestions made by the United Kingdom and other Member States to soften the privacy rules.

But Dutch Government announced last weak in an action plan to combat terrorism, it was going to investigate which sort of communication data telecom providers are obliged to store and which problem intelligence services and the police are encountering 'because of the lack of obligations to store historical traffic data'. According to a spokesman, the government will look not only at the length of the storage of data, but also if besides traffic data also location data will fall under the obligation.

The Dutch spokesman said the government was still undecided whether the European privacy rules should be changed. 'But it is clear that we have some concerns. Otherwise we hadn't asked to look again at the proposed privacy rules.'