Data retention

As Germany copes with new terror threats against the country this week, there have been renewed calls by some German politicians to restore Germany's 2007 data retention law, which was declared unconstitutional by the Federal Constitutional Court earlier this year.

The law required telecommunications companies to store all e-mail, web traffic, landline and mobile data of each user for six months.

The idea is that through what is known as "data traffic analysis," authorities can re-construct important information about a suspect given a pattern of phone conversations, text messages or e-mails. Even without the contents of the actual correspondence, law enforcement officials have said that knowing when or where a person made a mobile phone call can be crucial in an investigation.

The ruling relied largely on the argument that the law went against article 10, paragraph 1 of the German Basic Law, which protects the secrecy of comunications and describes it as ironclad: "The private exchange of communications is protected against unauthorized interference."

In the months that followed the March 2010 ruling overturning the law in Germany, a political disagreement has broken out among various government ministers, most notably, Justice Minister Sabine Leutheusser-Schnarrenberger, who supports the ruling, and Interior Minister Thomas de Maiziere, who supports renewed data retention.

Their debate has become yet another area of conflict between their respective parties, the Christian Democrats (CDU) and the FDP, the main coalition partners in the current government.

In an interview Friday with the German newspaper Sueddeutsche Zeitung, Minister Leutheusser-Schnarrenberg said her office was against the resumption of data retention and has begun work on proposing support for "event-related use of any data," whereby such data could be temporarily captured and handed over to authorities, as is the case in the United States.

Meanwhile, the head of the CSU, the Bavarian sister party of the national CDU, has come out strongly in favor of a new data retention policy that would, in essence, restore the old law.

"[The new policy] must provide security forces with the means to provide technical and legal means so that they can fight against organized crime," said Hans-Peter Friedrich, in an interview this week with the German television network ZDF.

Dispute results from a 2006 EU directive

The data retention law was a consequence of the 2006 European Union directive ordering member states to store telephone, e-mail and Internet usage data, as well as the location of mobile phones for at least six months.

While most EU member states have implemented the directive, German and Romaninan courts have declared their national laws to be unconstitutional. Earlier this month, Sweden's parliament presented a bill that would bring Sweden in line with Directive 2006/24/EC, as it is formally known.

Government officials and law enforcement in many European countries, including Sweden, have called for longer retention periods and said the saved communications data played important roles in solving serious crimes.

"It is a necessary and effective tool that makes it easier to uncover some crimes," Beatrice Ask, Sweden's justice minister, told reporters in Stockholm earlier this month.

However, there have been reports of abuse, which is precisely what Internet and privacy advocates have warned against.

In a report issued in July, the European Data Protection Supervisor in Brussels said telecom companies were saving and handing over data in ways that contradicted the directive and infringed on individuals' privacy.

"The data retention directive is a totally failed initiative," Joe McNamee of the European Digital Rights Initiative told Deutsche Welle. "The European Commission has had to postpone its report on its implementation repeatedly because it cannot find evidence to justify its existence."

In response to questions from national governments and the European Parliament, the European Commission has agreed to reevaluate the directive.

Author: Cyrus Farivar / Matthias von Hein
Editor: John Blau