9 RETENTION OF COMMUNICATIONS DATA
(a)
(26872)
12660/05
—
(b)
(26873)
12671/05
+ ADD 1 COM(05) 438
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Draft Framework Decision on the retention of data processed and stored in
connection with the provision of publicly available electronic
communications services or data on public communications networks for
the purpose of investigation, detection and prosecution of crime and
criminal offences including terrorism
Proposal for a directive on the retention of data processed in connection
with the provision of public electronic communication services and
amending Directive 2002/58/EC
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| Legal base | (a) Articles 31(1)(c) and 34(2)(b) EU; consultation; unanimity
(b) Article 95 EC; codecision; QMV
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| Department | Home Office
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| Basis of consideration |
(b) Minister's letter of 8 December 2005 |
| Previous Committee Report |
(a) and (b) HC 34-vii (2005-06), para 11 (26 October 2005
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| To be discussed in Council
| No date set |
| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Not cleared; further information requested
(b) Cleared
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Background
9.1 Persons providing communications services commonly retain,
for their own business purposes, 'communications traffic data'
i.e. information about communications, such as who called whom
and when, and including telephone and internet subscriber information,
itemised telephone call records and mobile phone location data.
Such data does not include the content of any communication, but
it can be of considerable assistance in the prevention, detection,
investigation and prosecution of crime, including terrorism. It
has therefore been considered necessary to retain certain types
of data, already processed and stored for billing and other commercial
purposes, for an additional period of time for the purposes of
criminal investigations or judicial proceedings.
9.2 The matter was the subject of a proposal by France,
Ireland, Sweden and the United Kingdom for a Framework Decision
under the EU Treaty, a revised version of which we considered
on 26 October 2005 (document (a)). Shortly before that, the Commission
made a proposal for a Directive under Article 95EC (document (b)).
The proposal was made in response to concerns by the European
Parliament, and shared by the Commission, about the legal base
of the proposed Framework Decision. In their view, the proposal
was concerned with the harmonisation of categories of data to
be retained and the periods for storing data and were matters
which fell under EC competence and the relevant measures would
need to be adopted under Article 95EC.
9.3 We also considered the draft Directive on 26
October, noting that it adopted much of the text of the draft
Framework Decision, but did not make provision for access to retained
data or for judicial cooperation in criminal matters. We noted
that the Directive sought to harmonise Member States' provisions
relating to data in order to ensure that the data was available
for the purpose of preventing, investigating, detecting and prosecuting
serious criminal offences such as terrorism and organised crime.
It also made a derogation from Directive 2002/58/EC[30]
on the processing of personal data and the protection of privacy
in the electronic communications sector so as to permit Member
States to adopt measures to ensure that relevant data was retained
and provided to competent authorities but only for the purpose
of preventing, investigating, detecting and prosecuting serious
criminal offences.
9.4 The provisions of Article 6 gave us cause for
concern. This Article provided for a committee of representatives
of the Member States, but chaired by the Commission, to review
an Annex to the Directive which would specify the types of data
to be retained. We asked the Minister if the Government was content
that such a sensitive issue as the identification and listing
of data to be retained was an appropriate matter to be delegated
to the Commission under the comitology procedure.
9.5 We also noted that the Directive provided for
a data retention period of 12 months, except for data relating
to communications using the Internet protocol, where the retention
period was to be six months, and that Member States were to be
required to reimburse data providers in respect of the "demonstrated
additional costs" of complying with the obligations imposed
by the Directive.
9.6 We noted that there were now two proposed methods
of dealing with this issue, one under the EU Treaty and one under
the EC Treaty and we asked the Minister to explain further if
the Government had any preference for a particular approach and
for her assessment of the legal and political consequences of
accepting that an EC instrument may be adopted for the purposes
of crime prevention and investigation.
The Home Secretary's reply
9.7 In his letter of 8 December 2005 the Secretary
of State for the Home Department (Mr Charles Clarke) informs us
of the progress of negotiations on the Directive and attaches
to his letter a copy of the text as it emerged form the Justice
and Home Affairs Council on 1-2 December. The Home Secretary explains
that the Council agreed a general approach by a qualified majority
on the text, that it would be considered by the European Parliament
at its plenary session on 12-14 December and that if the European
Parliament agreed with the text it would be submitted for adoption
at a later Council.
9.8 The Home Secretary summarises the changes which
have been made to the Directive as follows:
"The draft of the Directive agreed by the
Council would require all EU telecommunication service providers
to retain the data now listed in Article 4 of the Directive on
telephone calls and on Internet access, Internet telephony, and
Internet email. Unsuccessful call data — where a call is
connected but not answered — is included within the scope
of the Directive but is now only required to be retained where
it is already stored by providers. A new recital was included
to clarify retention obligations including that they be carried
out in a way to avoid data being retained more than once and may
be limited to the providers' own services or the network providers'.
The Directive leaves it to the Member States to deal with the
issue of costs.
"The Directive provides that data be retained
for the purpose of investigating, detecting and prosecuting of
serious crime, as defined by each Member State in its national
law. The comitology arrangements in the Commission's draft Directive
have been deleted and replaced with an article requiring an evaluation
and review (Article 12). The evaluation will consider whether
the list of data to be retained and the periods for its retention
remain accurate given any technological progress and issues arising
from the implementation of this measure. Member States believed
that this form of review would be more effective in meeting Member
States concerns and needs than a comitology committee.
"In response to concerns from some Member
States and the European Parliament, the text now includes an article
(Article 11bis) that requires Member States to ensure that access
to or transfer of data without permission is punishable by effective,
proportionate and dissuasive administrative or criminal sanctions.
The Government is content with this Article. The revised Directive
also includes an article setting out data protection principles,
in line with the European Community's Data Protection Directive.
"Some Member States retained concerns about
the legal base for this proposal and continued to argue that the
measure should be based on Article 31 of the Treaty on European
Union rather than Article 95 of the Treaty establishing the European
Community. However, the majority took the view that this measure
was focused on approximating the obligations on providers and
was therefore an internal market measure. The Government supported
this position.
"The Information Commissioner, Richard Thomas,
has had the opportunity of briefing from officials and law enforcement
on the objective of the instruments for retention of communications
data and on the practical value which retained communications
data has to law enforcement and national security investigators.
He has indicated to officials that he understands there is a balance
to be made between data protection obligations to erase communications
data to protect individual's privacy and retaining communications
data to protect the public's safety. He has taken the benefit
of that briefing into his discussions with his European counterparts
to help inform where that balance should appropriately and proportionately
be drawn. I shall want to ensure the Commissioner continues to
be consulted about taking forward and developing mechanisms for
retention of communications data, for safeguarding that data and
ensuring any such data is disclosed only necessarily and proportionately."
Conclusion
9.9 We thank the Home Secretary for his account
of the discussions in the Council. We welcome the changes which
have been made to the draft Directive, in particular the removal
of the provisions delegating to the Commission the identification
and listing of data to be retained.
9.10 We also welcome the provisions of Article
3bis which provide for access by competent authorities
to data in accordance with national law, and the express reference
in that Article to the necessity and proportionality requirements
under the European Convention on Human Rights. We also agree that
the question of costs should be left to each Member State rather
than being prescribed by the Directive.
9.11 We note the position in relation to the European
Parliament, and we are content to clear document (b) from scrutiny
so that the proposal may subsequently be adopted in its present
form. We shall hold the draft Framework Decision (document (a))
under scrutiny, pending further information from the Minister
as to whether it will now be withdrawn or amended.
30 OJ No L 201, 31.7.2002, p.37. Back
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