The Commission has released some interesting documents concerning the evaluation of the data retention directive in 2009-2011.
On 23 November 2009, the Commission and Member States discussed the matter with industry representatives.
- Malcolm Hutty (EuroISPA President) explained that “smaller ISPs that operate nationally in a single country tend to be nervous about the idea of harmonisation if this resulted in longer retention period. However, large CSPs that operate transnational would rather favour more harmonisation in this regard, for various reasons, amongst which solving the problematic differences that exist between national markets.”
- The Commission revealed that it discussed the directive only with with industries, Member States and MEPs, not with civil society (this was changed later, but the meetings with proponents by far outnumbered the meetings with critics).
- The Commission raised the question of “whether CSPs should retain all data mentioned under Art 5 DRD, or only those that are needed for commercial reasons”.
The infamous “room document” (draft evaluation report) is available in colour now.
On 12 March 2010 the Commission discussed again with Member State representatives:
- Only Austria and Germany wanted the Data Retention Directive to be reduced in scope.
- The Commission clarified that “information society services (ISS) that do not qualify as electronic communications services within the meaning of the definition in the Framework Directive 2002/21/EC (which is used in the ePrivacy Directive, e.g. hotmail), are not covered by the e-Privacy Directive; as the Data Retention Directive is an exception to the latter, it does not cover ISS either.”
- SE mentioned that due to the long duration of the process for requesting data abroad these data are often already deleted before the request arrives and is executed, which deters MS from asking such data in the future. CZ recommended “to find easier ways to handle requests”, because currently “it takes days”.
The German data protection commissioner Peter Schaar advocated “quick freeze plus 7 days of data retention” at a time when we strictly opposed any blanket retention requirements.
The EDPS criticised the Data Retention Directive fundamentally.
What is possibly most striking is the discussions the Commission is refusing to reveal:
- It will not disclose any material regarding the Inter-Service Consultations and the position each of the DGs took.
- Malmström met the German Minister of Interior (although the Ministry of Justice is competent for the matter of data retention). The briefing note is kept secret.
- Reding met with the EU-Committee of the German Bundestag on 24/06/2010. The briefing note concerning the DRD is being kept secret.
- Reding met with with a delegation of the European Journalists Federation on 1st July 2010. The briefing note concerning the DRD is being kept secret.
- Malmström met with the Austrial Minister of Justice.
- The replies to the Commission’s asking for further information on the effectiveness of the data retention directive are being kept secret.