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May 28, 2002

TO: Elena Ornella Paciotti <>
FROM: Maurice Wessling <>
Subject: Re: Cappato report
CC: Sjoera Nas <>, Cedric Laurant <>

Dear Mrs. Paciotti,

Thank you for your response to the Open Letter. Thank you also for your interest in our views on privacy and security in the telecommunications sector. We wholeheartedly support your position about the necessity of enabling users to opt-in for commercial bulkmail and registers.

Our letter, however, focuses on the problem of data retention for criminal investigations and national security. Many other parts of the new directive are certainly an improvement, but we believe that allowing data retention will severely put fundamental liberties in Europe under pressure.

By specifically inserting into an article of the directive a reference to data retention, the drafters of the Palacio amendment, following in that the Council's common position, insidiously establish the surveillance of communications as a general principle only subject to limitations, rather than making it an exception - consequently subject to a strict interpretation - within the wide derogatory regime that Article 15 already establishes. We therefore think that Article 15 should not mention data retention since it could already be inferred from the language of the first sentence of Article 15(1). Therefore we believe we need to oppose such measures even if they are part of a broader compromise.

We fully agree with the notion that the retention of traffic data can only be decided through "legislative measures" and is allowed only "for a limited period". However we fear that even a necessary, appropriate and proportionate implementation will result in generic retention, regardless of whether the user of telecommunications is subject to a criminal investigation.

Additionally, the word temporary is missing in the Palacio amendment compared to Cappato's version. Would the drafters of the amendment be too much concerned that retention might not become generalized? If the words "proportionate", "appropriate" and "within a democratic society" used in the amendment refer to Article 8 of the European Convention of Human Rights ("ECHR"), it is definitely not in the spirit and letter of this Convention to allow for permanent restrictions of freedoms. We strongly recommend the addition of the word "temporary" in the amendment.

While the final sentence of the amendment states that "All the measures referred to in this paragraph shall be in accordance with the general principles of Community law including those referred to in Article 6 paragraphs 1 and 2 of the Treaty on European Union", we do not understand why the ECHR is not mentioned here. Although the drafters of the amendment have thought about this fundamental text, by referring to it only in a recital they show that they do not intend the ECHR to be as binding as an insertion in Art. 15 itself would do. We believe that a direct reference to this Convention is vital to secure the EU citizens' right to privacy as enshrined and interpreted in Article 8.

In our view, proportionate data retention should be limited to those users who are under investigation, and should not place law-abiding citizens under unnecessary surveillance.

By "unnecessary" we want to emphasize that a surveillance is "unnecessary" (pursuant to the its meaning in art. 8 of the ECHR) if it takes place before any formal criminal investigation is launched. We would like to express our gratitude for your kind letter to the members of GILC and hope that all the members of your party support the Cappato Report that the Parliament has already approved last year and reject any amendment that make of data retention and general surveillance of communications a general principle.

We will be present at a press conference tomorrow organised by Marco Cappato, at 15.30 hours, at room PHS0A50.

Best regards,
Cédric Laurant, Electronic Privacy Information Center
Sjoera Nas, XS4ALL Internet
Maurice Wessling, Bits of Freedom