Data retention dispute: he’s back

Status: 12.09.2021 9.45 a.m.

The dispute over data retention is one of the long-running issues of EU politics. Now the Commission has listed new possibilities in a paper – and rekindled the old dispute.

By Jakob Mayr, ARD-Studio Brussels

Internet crime scene: Serious criminals forge terrorist plans, smuggle weapons and drugs, and trade child porn. Criminals use modern technology and investigators are calling for equality of arms: They want to be able to more easily access traces that suspects leave behind on the phone and online. For this, telecommunications providers would also have to collect data from unsuspecting citizens. It is not about the content of phone calls, SMS or e-mails, but about connection data: Who made the phone calls to whom and from which cell phone? How long did you surf the Internet with which IP address?

Eike Bone-Winkel from the Bund deutscher Kriminalbeamter (BDK) considers this to be a necessary instrument: “Often, stored data are the only target-oriented clues for successfully completing investigations set a relatively high order of magnitude. “

Deutsche Telekom currently only retains IP addresses, i.e. the addresses of users on the Internet, for one week for billing purposes. The German law on data retention actually allows ten weeks. But this regulation has been on hold for four years because the responsible Federal Network Agency suspended it after a court ruling.

Does data collection bring more clarification?

Data retention is the Loch Ness monster of European politics: it appears regularly in changing forms – and to some it is creepy. For example, MEP Patrick Breyer from the Pirate Party. In his opinion, the storage of data without specific suspicion does more harm than good: “It disrupts confidential communication where people are legitimately dependent on non-traceability, for example when contacting psychotherapists, doctors, lawyers, works councils, marriage and drug counselors and other advice centers . “

Breyer refers to studies by the scientific service of the European Parliament and the Max Planck Institute for Foreign and International Criminal Law, according to which laws on data retention do not lead to higher clearance rates. The CDU member of the European Parliament, Axel Voss, argues against this: “When the investigators from Germany responded, I was told: This is necessary, they need this data. That is why I think it is important to take action again.”

New proposals from Brussels

Because several EU states have introduced data retention, including Germany. But she failed the judiciary’s test. The Federal Constitutional Court and the European Court of Justice did not reject data collection per se, but rather the concrete form in law and directive.

That’s why the FDP MEP Moritz Körner says that this is the end of it:

In recent years, the EU Commission and the member states have repeatedly crashed before the European Court of Justice and have not managed to resolve a legally secure form of data retention. That is why there has to be a rethink in security policy, away from unprompted data retention.

Connection data and quick freeze

The heads of state and government continue to regard the EU governments as an instrument “for the effective fight against crime” (Council conclusions of June 2019) and are calling for new proposals from the EU Commission.

In a discussion paper dated June 10th, it lists possibilities: Retention of connection and location data under strict conditions, also in services such as WhatsApp, Facebook or Signal, via targeted data storage in suspicious groups of people or areas. Another suggestion is rapid data storage in the event of suspicion for a certain period of time, the so-called quick freeze (“shock freezing”).

Waiting for Berlin

For data storage opponents like Breyer from the Pirate Party a horror catalog: “Politicians must consistently target suspects of serious crimes instead of placing 450 million unsuspecting Europeans under general suspicion. That’s a totalitarian approach.”

Proponents of data retention such as the Christian Democrat Voss, on the other hand, welcome Brussels’ new attempt: “If we stick to this blanket no to data retention and cannot come up with a solution, I have massive concerns that we can no longer guarantee criminal prosecution.”

“Quite a frustrating state”

The Bundestag of German detective officers defends itself against further political demands without the police and the public prosecutor getting the necessary tools: “It is not possible to set new political priorities in the fight against child abuse or hate crime without the question of data retention or to discuss a serious alternative if they are rejected, “says BDK spokesman Eike Bone-Winkel. For investigators in the field of cybercrime, this is “a pretty frustrating situation”.

As soon as the EU states have evaluated the Commission proposals, they could make a new attempt to introduce data retention after all. How the next federal government will deal with the issue depends largely on the outcome of the federal election.

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