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English version | Version française 12 November 2001 Prime Minister Guy Verhofstadt President, EU Council of Ministers Rue de la Loi 16, 1000 BRUXELLES Dear President Verhofstadt: We write to you on behalf of a wide range of civic organizations in the United States and Europe to express our concern regarding the request of President Bush that the proposed EU directive on the protection of privacy in the electronic communications sector (COM(2000)385) be altered to allow for data retention regarding the communications of Europeans and consequently of Americans. While we support the President's efforts to take appropriate steps to reduce the risk of terrorism and to work with government leaders to protect public safety, we do not believe that this proposal is appropriate or necessary. First of all, under United States law there is no similar obligation for data retention by telecommunications companies. US federal law recognizes a need to preserve data once a particular investigation is underway, but it does not create a general obligation for communication carriers to retain records on customers that are no longer required by the carriers. President Bush is asking European governments to impose obligations on European companies that would not be imposed on US companies. Second, the European Privacy Commissioners and Members of the European Parliament have opposed efforts to create new data retention obligations. In the letter of 7 June 2001 to Mr. G–ran Persson, President of the Council of the European Union, the Chairman of the Article 29 Working Group wrote that "systematic and preventive storage of EU citizens communications and related traffic data would undermine the fundamental rights to privacy, data protection, freedom of expression, liberty and presumption of innocence." In a July 2001 report by the European Parliament Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, Committee Members made clear that restrictions to safeguard public security and conduct criminal investigations should be appropriate, proportionate and limited in time and that general or exploratory electronic surveillance on a large scale should not be allowed. The Members also noted that Member States should not have a general right to request whatever traffic and location data they wished without the authorities stating a specific reason as to why such information was needed, and that information should not be stored longer than was necessary for the transmission of data and for traffic management purposes. Third, because communications data often moves between the United States and Europe, European data retention requirements would directly and adversely affect the privacy rights of Americans. There is a significant risk, if this proposal goes forward, that US law enforcement agencies will seek data held in Europe that it could not obtain at home, either because it was not retained or because US law would not permit law enforcement access. Fourth, the retention of personal information that would otherwise be destroyed upon the completion of its intended use creates new privacy and security risks for citizens. Vast databases of personal data now include sensitive medical information as well as data revealing political opinions, religious and philophical beliefs. These new retention requirements will create new risks to personal privacy, political freedom, and public safety. Further, the privacy commissioners have recognized that one of the best privacy safeguards is to minimize the collection of personal data where possible. They have consistently affirmed that confidentiality of communications is one of "the most important elements of the protection of the fundamental right to privacy and data protection as well as of secrecy of communications", and that "any exception to this right and obligation should be limited to what is strictly necessary in a democratic society and clearly defined by law." A blanket retention of all traffic data for hypothetical criminal investigations and for a long period of time would not respect these basic conditions. We note also that governments on both sides of the Atlantic have sought to make secret public information that would otherwise assist the public in understanding the threats it now faces. We do not believe it draws the proper balance in a democratic society for the activities of government to be concealed from public scrutiny while the private activities of citizens are made open to government. Finally, we believe it is inconsistent with well established international norms for communications privacy, such as Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights, for governments to compel the retention of private information for surveillance purposes. Confidentiality of communication is a central tenet of modern democratic society. Proposals to reduce the privacy of citizens will undermine the strength of the democratic state. We have contacted President Bush regarding our concerns. We respectfully urge you not to take any steps at this time that may reduce the privacy of citizens. Sincerely, American Civil Liberties Union New York, USA The Association for the Defense of Human Rights in Romania - The Helsinki Committee Bucharest, Romania Association for Progressive Communications Johannesburg, South Africa Bits of Freedom Amsterdam, Netherlands Center for Democracy and Technology Washington, USA Center for National Security Studies Washington, USA Chaos Computer Club Hamburg / Berlin, Germany Computer Professionals for Social Responsibility Palo Alto, USA Digital Rights Copenhagen, Denmark EKPIZO (Consumers Association The Quality of Life) Athens, Greece Electronic Frontier Finland Finland Electronic Frontier Foundation San Francisco, USA Electronic Privacy Information Center Washington, USA Essential Information Washington, USA Foundation for Information Policy Research London, UK Irish Council for Civil Liberties Dublin, Ireland The Multiracial Activist and Abolitionist Examiner Alexandria, United States National Consumers League Washington, USA NetAction San Francisco, CA Privacy International London, UK Privacy Rights Clearinghouse San Diego, USA Privacy Times Washington, USA Privacy Ukraine Kyiv, Ukraine quintessenz.org Vienna, Austria Sighisoara Durabila Sighisoara, Romania Statewatch London, UK StrawberryNet Foundation Bucharest, Romania Swiss Internet User Group (SIUG) Z¸rich, Switzerland VIBE!AT - Association for Internet Users Austria XS4ALL Internet Amsterdam, Netherlands ZAnet Internet Services Witkoppen, South Africa cc: President George W. Bush REFERENCES Proposal for a European Parliament and Council directive concerning the processing of personal data and the protection of privacy in the electronic communications sector (COM(2000) 385 - C5-0439/2000 - 2000/0189(COD)) http://www3.europarl.eu.int/omk/omnsapir.so/calendar?APP=PV2&PRG=CALEND& LANGUE=EN&TPV=PROV&FILE=010906 http://www3.europarl.eu.int/omk/omnsapir.so/pv2?PRG=CALEND&APP=PV2& LANGUE=EN&TPV=PROV&FILE=010906 Letter from Article 29 Data Protection Working Party to Mr G–ran Persson, Acting President of the Council of the European Union, June 7, 2001 http://www.statewatch.org/news/2001/jun/07Rodota.pdf EU Data Protection Working Party Article 29, Opinion 7/2000 on the European Commission Proposal for a Dir. of the Eur. Parl. and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector of 12 July 2000 COM (2000) 385 (2 Nov. 2000), reprinted in M. Rotenberg, The Privacy Law Sourcebook, United States Law, International Law, and Recent Developments 437 (EPIC 2001) Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, Report on the proposal for a European Parliament and Council Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector, July 13, 2001. http://www2.europarl.eu.int/omk/OM-Europarl?PROG=REPORT&L=EN&PUBREF= -//EP//TEXT+REPORT+A5-2001-0270+0+NOT+SGML+V0//EN&LEG_ID=5 EU Forum on CyberCrime, Discussion Paper for Expert's Meeting on Retention of Traffic Data, November 6, 2001 http://europa.eu.int/information_society/topics/telecoms/internet/crime/wpapnov/index_en.htm EU Forum on CyberCrime, Plenary Session, November 27, 2001 http://europa.eu.int/information_society/topics/telecoms/internet/crime/forum/index_en.htm