Readers will recall from the curious case of Mr Spitz that European telecoms operators already retain very large amounts of information about their customers. In an evaluation report adopted today by the European Commission, the Commission proposes to review the existing rules.
The Commission summarise the main findings of the report as:
- Most Member States take the view that EU rules on data retention remain necessary for law enforcement, the protection of victims and the criminal justice systems. As criminal investigation tools, the use of data related to telephone numbers, IP address or mobile phone identifiers have resulted in convictions of offenders and acquittals of innocent persons.
- Member States differ in how they apply data retention. For example, retention periods vary between 6 months and 2 years, the purposes for which data may be accessed and used, and the legal procedures for accessing the data, vary considerably.
- Given that the Directive only seeks to partially harmonise national rules, it is not surprising that common approach has not emerged in this area. The overall low level of harmonisation can however create difficulties for telecommunication service providers and in particular smaller operators. Operators are reimbursed differently across the EU for the cost of retaining and giving access to data. The Commission will consider ways of providing more consistent reimbursement of the costs.
- Data retention represents a significant limitation on the right to privacy. Whilst there are no concrete examples of serious breaches of privacy, the risk of data security breaches will remain unless further safeguards are put in place. The Commission will therefore consider more stringent regulation of storage, access to and use of the retained data.
The Commission will now commence a consultation with stakeholders prior to publishing its proposed amendments to the existing Data Protection Directive.
This area is very sensitive politically, as it draws one of the lines between the interest of the state and the interests of citizens. As such some countries have delayed implementation of existing rules and in others their legality has been subject to challenge. It remains to be seen how the Commission will seek to meaningfully engage on those issues which are not really addressed to a substantive extent in the report.