Data retention

After years of dragging its heels on the 2006 EU Data Retention Directive, Brussels recently warned Vienna to implement the law or face the prospect of infringement proceedings.

On Thursday, the lower house of the Austrian parliament bowed to the pressure, and it is widely expected that the upper house will soon rubber stamp the measure to put it into law.

Under the European Commission guideline, which was adopted in 2006 in response to terrorist bombings in Madrid and London, private telephone and email data pertaining to destination, date, time and duration of communications, will be stored for six months.

The information will be available for investigators and public prosecutors to access if needed to lend weight to criminal proceedings. But critics argue that the law is too loosely knit and that it opens the way for misuse.

Peter Krammer of Gegenvds.org ("Against data retention"), an Austrian organization which opposes data retention, told the Deutsche Welle that he was "very concerned" about the implications of the EU guidelines for his country.

"The risk is that the data retained will not only be used for finding terrorists and other such strong crimes, but will be used against normal people," he said. "We will soon be in a scenario like Orwell's 1984."

Troubling future

Besides being a violation of privacy, Krammer says the law could also lead to a lot of two-plus-two-equals-six assumptions, with citizens being wrongly implicated in crimes they did not commit.

Although the Austrian government proposed a law for the implementation of the European directive back in 2007, it was postponed following widespread resistance from across Austrian society. As far as Krammer is concerned, that has not abated.

"Everybody who understands what data retention does, and the potential risks involved is very concerned about the future of Austria," he said.

Austria is one of five member states that Cecilia Malmström, European commissioner for home affairs said would face action if they did not implement the law. The others are Sweden, the Czech Republic, Romania and Germany. In the case of the latter three, domestic laws upholding the directive were put in place but subsequently overturned by constitutional courts.

Under review

Earlier this month the European Commission said it would review the directive and consider more "stringent regulation" of storage in order to further minimize the risk of data security breaches.

"Our evaluation shows the importance of stored telecommunications data for criminal justice systems and for law enforcement. But the evaluation report also identifies serious shortcomings. We need a more proportionate, common approach across the E.U. to this issue," Cecilia Malmström said in a statement.

Joe McNamee, advocacy co-coordinator with European Digital Rights (EDRI) noted the irony in Brussels talking about infringement proceedings while simultaneously agreeing to a review. He told Deutsche Welle in an e-mail that Vienna had been coerced into passing the law by the European Commission.

"The actions of the Austrian government up until now clearly demonstrate that it believes that data retention is not necessary, and is therefore illegal under the European Convention on Human Rights," he wrote. "It is profoundly worrying to see the European Commission pressuring a sovereign state into breaking the law in this way."

No great gains

A report published by German legal experts earlier this week said it would be impossible to rephrase the directive in order to make it compatible with the EU Charter of Fundamental Rights. Furthermore, the Bundestag Working Group report said data retention had not been proved as an effective way of fighting crime.

"This marginal increase in the clearance rate by 0.006 percent could raise doubts about whether the provisions in their current form would stand their ground under a proportionality review," the report said.

Before the Austrian law can come into effect, it has to pass through the Bundesrat, the upper house of parliament. Although that is unlikely to be a problem, opponents are not ready to give up the fight and are already preparing to take their case to the Austrian constitutional court.

Author: Tamsin Walker
Editor: Cyrus Farivar