GLOBAL INTERNET LIBERTY
CAMPAIGN
NEWS
ISSUES
RESOURCES
ABOUT
GILC
May 29, 2002
From: Yaman Akdeniz <lawya@cyber-rights.org>
Subject: Re: Cappato report
Cc: "Patrick Cox" <PCox@europarl.eu.int>, Mcappato@europarl.eu.int,
omarzocchi@europarl.eu.int
To: Elena Paciotti MEP, Shadow rapporteur - PES Group
Dear Ms Paciotti,
Re: Cappato Report and Data Retention issues
Many thanks for your message. However, I am concerned not only about the wording of the Directive but also about the inclusion of data retention provisions within the EU level within this Directive. You do mention in your message that "this final proposal is not fully satisfactory, but a compromise solution seldom is". However, there should not be a compromise so far as infringement of rights under the Convention and for that purpose under European Charter of Fundamental Human Rights are concerned. In fact, the Charter recognises in article 8 the protection of personal data as a right in addition to respect for communications in article 7. However, I fail to see these issues being adequately addressed by the amendments made.
The monitoring of communications including interception of content data, and the retention of communications data can constitute an interference with the right to respect for private life and correspondence in breach of Art. 8(2) of the European Convention on Human Rights, unless these surveillance activities are carried out in accordance with a legal provision capable of protecting against arbitrary interference by the state with the rights guaranteed. However, the exceptions provided for in Article 8(2) are to be interpreted narrowly, and data retention for law enforcement purposes should only be employed for exceptional purposes and the need for such retention in a given case must be convincingly established in accordance with article 8 of the ECHR and with the jurisprudence of the Strasbourg Court in relation to article 8.
Furthermore, the relevant provisions of domestic law must be both accessible and their consequences foreseeable, in that the conditions and circumstances in which the state is empowered to take secret measures such as interception of communications and retention of communications data should be clearly indicated as "where a power of the executive is exercised in secret the risks of arbitrariness are evident."
At this stage, a commitment to data protection and privacy of communications can only be shown by rejecting the EPP PSE amendment 46.
Yours sincerely,
Dr. Yaman Akdeniz,
Director, Cyber-Rights & Cyber-Liberties (UK)
(http://www.cyber-rights.org)