An interesting week on the European Union Data Retention front. The EU Council, shamefully steered by the United Kingdom which currently holds the Presidency, seems to be trying sneak some controversial Communications Data Retention decisions.
Communications Data Retention is controversial because it involves storing vast amounts of data , priomarily that of innocent people, not just those people being specifically targetted in Police or Intelligence agency investigations.
The EU Commission came up with a different but still draconian and ill thought out version of the plan.
The European Parliament seems to have rejected this, but the over powerful EU Council may still try to sneak in their version during December.
The Open Rights Group alerted us to the lobbying of MEPs by some corporate vested inteests which are trying to extend the plans for permitting access to Retained Communications Data to investigations for any petty criminal offence. These companies are also lobbying for the minor civil offences such as illegal use of copyrighted material to be redfined as criminal offences.
The prospect of rich foreign media and entertainement companies being allowed to have access to the retained Communications Traffic Data of 450 million, mostly innocent citizens of the European Union, either dfirectly, or, at public taxpayers expense, through the policee authorities, is a repellant one, given these industries' tarnished record of false accusations against their own innocent customers and the exploitation of original music and other artists.
These backroom deals and procedural shenanigans caught the attention of Nosemonkey
Then the 58,000 signature EU wide Data Retention is No Solution petition was handed in to the European Parliaemnt.
Then as , Ian Brown The Blog of Doom reported, the European Parliament's civil liberties justice and home affairs committee (LIBE) has voted on an amended version of the EU Commissions draft directive.
EurActiv report of the Committee's complicated deliberations, does leave us wondering about what this supposedly leass authoritarian version of the Communications Data Retention directive would mean for us in the UK if it were adpoted, especially with regard to the Regulation of Investigatory powers Act 2000 Part 1, Chapter 2, Aquisition and Disclosure of Communications Data.
We are not sure that we completely agree with Ian Brown:
Most interestingly, a further amendment requires judicial authorisation before retained data can be accessed. This would be a major change to UK law, where government agencies can currently self-authorise access to communications data.
However the EurActiv report says
Competent authorities: LIBE adopted unanimously an amendment that limits use of the stored data to "the judicial authorities and national authorities responsible for the investigation, detection and prosecution of serious criminal offences".
Surely the UK Government would interpret the "national authorities" to be those currently authorised to get access to Commmunications Data under the exisiting Regulation of Investigatory Powers Act 2000 which includes a vast array of Government organisations from the security services through to Local Council Trading Standards departments, none of which requires judicial permission i.e. a warrant signed by an independent judge.
or with Suw Charman at the Open Rights Group is correbt to focus on
The list of ’serious’ criminal offences has been defined as being those crimes listed for use in the EU Arrest Warrant legislation
EurActiv reports:
Scope: The Council wanted the data to be available for "the prevention, investigation, detection and prosecution of serious criminal offences, such as terrorism and organised crime." A majority of the LIBE committee considered this definition to be too open and refers instead to "criminal offences, as referred to in Article 2 (2) of Council Framework Decision 2002/584/JHA" on "the European arrest warrant and the surrender procedures between Member States". A more far-reaching amendment form the Green/EFA group that aimed at exluding non-capital crimes from this list, was voted down.
However, if you actually read the creepy European Arrest Warrant definition of "crime" in Article 2 (2):
COUNCIL FRAMEWORK DECISION
of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States
(2002/584/JHAArticle 2
Scope of the European arrest warrant
...2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:
- participation in a criminal organisation,
- terrorism,
- trafficking in human beings,
- sexual exploitation of children and child pornography,
- illicit trafficking in narcotic drugs and psychotropic substances,
- illicit trafficking in weapons, munitions and explosives,
- corruption,
- fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of theEuropean Communities' financial interests,
- laundering of the proceeds of crime,
- counterfeiting currency, including of the euro,
- computer-related crime,
- environmental crime, including illicit trafficking in
endangered animal species and in endangered plant species
and varieties,
- facilitation of unauthorised entry and residence,
- murder, grievous bodily injury,
- illicit trade in human organs and tissue,
- kidnapping, illegal restraint and hostage-taking,
- racism and xenophobia,
- organised or armed robbery,
- illicit trafficking in cultural goods, including antiques and works of art,
- swindling,
- racketeering and extortion,
- counterfeiting and piracy of products,
- forgery of administrative documents and trafficking therein,
- forgery of means of payment,
- illicit trafficking in hormonal substances and other growth promoters,
- illicit trafficking in nuclear or radioactive materials,
- trafficking in stolen vehicles,
- rape,
- arson,
- crimes within the jurisdiction of the International Criminal Court,
- unlawful seizure of aircraft/ships,
- sabotage.
This list of specific types of crime is less "catch all" than than the vague, obviously UK Home Office inspired, "terrorism or serious crime" wording.
However, if access to Communications Traffic Data is limited to this European Arrest Warrant definition, then it will also totally prevent some of the controversial non-Police access to Communications Traffic Data e.g. by Local Authority Trading Standards investigations of rogue traders or the Department for Work and Pensions investigations of petty benefits fraud etc. especially since the test of at least 3 years in prison is written into the European Arrest Warranr definition. This test applies under RIPA to the interception of electronic data , but not to Communications Traffic Data.
The European Arrest Warrant definition includes terrorism, but it does not include other areas of interest to security and intelligence agencies such as espionage.
Will the EU Council of Ministers ignore the EU Parliament again on this Communications Traffic Data Retention directive ?
Where, in all this talk of "Data Retention", are there any plans or directives or leadership about other forms of Data Retention which should be considered and regulated e.g. CCTV camera video tape or hard disk data retention or DNA or RNA etc.Genetic Database retention of human tissue samples and processed "fingerprints", or other Biometric Identifier databases ?
While the LIBE amendments limit use of retained data to judicial and national authority purposes, EurActiv also reports that:
The actual text of the amendments don't yet seem to be available, so we need to check this. But it could be a real sticking point with the UK government, who have strongly resisted judicial authorisation for intercepts and communications data access.