By Bruno Waterfield, updated at 16:30 - 20th September 2005
An EU row over security enforcement access to electronic communications data has been joined by the European Commission.
The EU presidency is pushing hard to fast track legislation which requires mobile phone operators or internet service providers to retain and make available communications data.
Divisions have emerged between national governments, the commission and the European Parliament over civil liberties and legal basis for the proposal.
Britain, France, Ireland and Sweden are pushing measures to store data including phone numbers called and email addresses – moves that are opposed by Germany and Finland.
Compromise
In a bid to break deadlock at a meeting of Europe’s interior ministers on October 12, European Justice and Security Commissioner Franco Frattini has tabled long-awaited compromise proposals.
“This proposal is a very balanced and constructive one, which takes account of the fundamental rights to security, to a private life and protection of personal data, as well as different interests, in particular those of law enforcement authorities and communication providers," he said.
The European Commission’s revised communications storage plan is designed to give legal certainty under EU data laws.
There are key differences to original proposals pushed hard by the British EU presidency after July terror attacks on London.
MEP veto
Under Frattini’s revised plan MEPs will have a say and the European Parliament could amend or even block proposals under the EU’s ‘co-decision’ procedures.
“I am dedicated to working on a co-decision basis with the European Parliament and the member states in the council, and in particular its UK presidency, to try to reach an agreement on this issue before the end of this year- counter terrorism effectively requires that we have no time to loose,” he said.
The legislation will under the EU’s “hard law” of internal market legislation on privacy electronic communications.
Because the data does not include the content of communications the proposals, Frattini suggests, can be under three-year old EU treaty law.
No ‘safe havens’
Commission and parliament lawyers believe this move will give the data retention scheme greater force, flexibility and consistency across Europe.
“We can not allow safe havens. In Europe now it is possible to escape because of the huge diversity in rules,” said Frattini.
Enforcing the proposals under EU market competence will also minimise, or rule out, challenges under European data protection law.
Current measures envisage the data grabs being organised under a inter-governmental judicial cooperation, raising possible legal conflicts in the EU courts.
At present, up to 15 member states do not have mandatory rules on data retention – including the UK.
In the ten that do have rules operational measures are not in place and time periods for data retention vary between three months and three years.
Time periods
Frattini also eases time periods for data retention – and thus costs for industry – a core element to German and Finnish opposition.
Under the commission measures data must be held for one year for fixed or mobile telephones and six months for internets service providers.
But governments wishing to hold data longer than a year will be able to require extended storage under national security opt-outs.
The commission’s proposals could raise problems for Italy and Ireland as both countries require longer data retention periods.
EU experts will constantly review the measures to ensure the scheme does not fall behind developments to rapidly changing technologies
Access to the data by law enforcement agencies will be restricted to investigation of serious criminal offences, such as terrorism and organised crime.
Cost
The commission foresees provision to compensate electronic information service providers for additional costs under the data retention scheme.
EU officials are wary at putting precise figures on costs but estimate the price to industry at between “dozens of millions to hundreds of millions of euro”.
EU electronic communications industry sources say “progress in the right direction has been made”.
“But multiple questions remain unanswered, time is passing and the jury is still out,” said a source.
“We will judge the end result based on how this proposal undermines EU competitiveness and public trust in information society.”
Prospects
The British EU presidency stressed that Frattini’s compromise plan would be discussed alongside existing proposals in three weeks.
“The most important thing is to get this in place quickly,” said a spokesman.
“The commission has brought its proposal and we will be able to look at them side-by-side and ministers will then take a view in October.”
"It is very good to see it, there are different views."
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