EU Commission explores options for new data retention

For the member states, the Commission brings a “general and indiscriminate” logging of user traces into play for national security.

The EU Commission does not give up on data retention, which has been controversial for years. With an ongoing survey of the member states, the Commission wants to sound out the possibilities that still remain according to the case law of the European Court of Justice (ECJ) for storing and evaluating user data. The proposals extend to the “general and indiscriminate” recording of connection and location information.

Such a far-reaching measure, which would include “over the top” providers such as WhatsApp, Facebook Messenger, Signal and Threema, is only possible in the case of “serious, actual and current threats to national security”, explains the Commission in the consultation paper that Netzpolitik.org published . Corresponding orders for providers, which could also be based on an assessment of national authorities for a foreseeable risk, would have to be temporary and contain appropriate protective measures.

“Targeted” data retention


Furthermore, the government institution in Brussels proposes “targeted” data retention based on geographical danger points or specific groups of people. These could be critical infrastructures, transport hubs or places with a high crime rate, but also known threats, organized crime and criminal offenders who have already been convicted. In addition, there are options such as general storage of IP addresses in the fight against serious criminal offenses and threats to public safety, a quick freeze at the request of investigators in the event of a specific suspicion of crime and a statutory identification requirement for service providers .

The Commission only briefly touches on the approaches to leave the status quo without a joint approach or to rely on recommendations instead of a legal regulation. Your focus is on binding rules for the entire EU. It mainly relies on the ECJ rulings from October, according to which at least a temporary arrangement of data retention is no longer excluded, for example in the case of current or foreseeable terrorist attacks . The Luxembourg judges now also consider it feasible to store IP addresses without cause.

“The EU is trying to ride a dead horse”

The EU countries should finally realize that they have been trying to ride a dead horse for years, criticized MEP Moritz Körner (FDP) to netzpolitik.org. A legislative proposal that does not adhere to the strict ECJ requirements will not get a majority in parliament. Even a “supposedly ‘targeted data retention'” could affect millions of innocent people such as tourists and users of public transport, said Patrick Breyer (Pirate Party). No form of general data retention is in conformity with fundamental rights. According to a study by the commission , investigators usually do not need the instrument at all .