Data retention in Europe

[Matej Kovacic <matej.kovacic@xxxxxxxxx>]

Hi,

> or phone numbers. If so, it's interesting to note that that's exactly
> what Tor is for - defeating _traffic_ analysis.

Since I live in Europe, just a short explanation of this.

Yes, it is about traffic data and not content. So Tor is a good solution
to this.

But there are some other problems as well.

In US there was a case Smith v. Maryland (Smith v. Maryland, 242 U.S.
735 (1979).), which diferentiates between content of communication and
traffic data. However, there is State v. Hunt decision (State v. Hunt,
91 N.J. 338, 450 A.2d 952 (1982).), which says individual can expect
privacy in traffic data also.

But European Court of Human Rights in 1984 (interesting date :-D) in
their Malone v. Great Britain decision clearly stated that traffic data
are integral part of communication.

There are some legal opinions that data retention won't go through so
called triple principle test. This test requires that regulation must be
a) legal (prescribed by law, law must be accesible to the public) b)
necessary in democratic society for the pursuit of a legitimate aim and
c) proportionate to the aim pursued.

It is also important to know, that European Court of Human Rights
critisized so called blanket measures in other decisions as well. So -
if there is no suspicion, individual should not be put under
surveillance. But data retention is that - surveillance and secret
tracking without prior suspicion.


The other interesting thing is that this directive was prepared and
adopted in very short time. How that?
It is likely that some strong lobby was behind direkctive. However, this
idea of extended surveilalnce is not new and is NOT the consequence of
antiterrorism measures. There are some documents from 1993 which show
that extension of surveillance and harmonisation of this area is not new
in Europe (see Interception of communications, report to COREPER,
ENFOPOL 40, 10090/93, Confidential, Brussels, 16.11.93, published on
Statewatch website in 1997). Terrorism is not the reason for this.

BTW: one of the latest proposals (I thik this version was also adopted)
said retention of data applies to ISP's only. No cybercaffes and public
places included.
The question is what are you doing in cybercaffe and wha in your home.
In cybercaffe you are surfing, posting on forums and checking your mail.
But you are not using P2P applications. P2P applications you are using
at your home.

So which lobby is behind directive?
Actually, there is only one lobby strong enough. This is the lobby of
anti-piracy groups and industry.

It is important to know, that first directive proposals stated that
retention is necessariy for fight against terrorism. But then they
started to talk about "serious criminal offences". What are they?
They are offences, which fall under European arrest warant. The warrant
applies in the following cases: a) where a final sentence of
imprisonment or a detention order has been imposed for a period of at
least four months or b) for offences punishable by imprisonment or a
detention order for a maximum period of at least one year.

Piracy and filesharing fall under European arrest warrant in some
european legislations. OK, it is true, that European arrest warrant is
in "crisis" since German constitutional court rejected it, but note
this: "no limitation to certain types of crimes for which access is
allowed".

Slovenian Ministry of justice (I live in Slovenia) declared they support
data retention for all crimes which should be prosecuted officially.

So next step will be fighting this directive in constitutional courts
and finally on the ECHR.

Meantime we should propagate using Tor.


bye, Matej