[huridocs-tech] EU directive on privacy protection in electronic communications

[***Originally posted on the "ngos@derechos.net" listserv, Mod.***]

I'm passing on this very important request from the European
parliament.  I hope the attachment goes through.  If it doesn't, please
let me know and I will send it to you separately.

Margarita Lacabe - Derechos - marga@derechos.org - http://www.derechos.org/
____________________________________________________________________________

                  "We are never so likely to settle a question
                     rightly as when we discuss it freely."
                             Thomas Babington, 1830

---------- Forwarded message ----------
Date: Tue, 23 Apr 2002 17:15:03 +0200
From: Marco Cappato <Mcappato@europarl.eu.int>
To: Marco Cappato <Mcappato@europarl.eu.int>
Subject: TO THE ATTENTION OF HUMAN RIGHTS AND CIVIL LIBERTIES ORGANISATIONS

To the attention of Human Rights and Civil Liberties organisations
URGENT / IMPORTANT

Bruxelles, 23 April 2002

Dear friends,

The EU is currently examining a directive on the protection of privacy in
electronic communications
(<http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdo 
c&lg=EN&numdoc=52000PC0385&model=guichett>)
The aim of the directive is to review EU laws on privacy so to guarantee a
high level of data protection and citizens' privacy in a context of
liberalisation of the market. The European Parliament expressed its
opinion on the 6th of september 2001, while the Council adopted a common
position on the 28 January 2002.

The decision making process is now at a crucial fase, since the EP has to
adopt a second reading recommendation. One of the main issues at stake in
the directive is about data retention. The Council - composed of EU Member
States' Ministers - is pushing to review EU privacy requirements of
deletion of communications' traffic data after the billing and
contestation period. The Council proposes to introduce a reference to the
possibility of imposing on communications' service providers the retention
of data related to citizens' communications for a longer period for law
enforcement purposes. The EP has on the contrary affirmed in its first
reading that any derogation to the directive shall be subject to the
conditions spelled in the European Convention on Human Rights and the ECHR
Court jurisprudence .

The EP committee for citizens' rights and freedoms, justice and home
affairs has voted on the 18th of April - in the framework of the second
reading procedure - to confirm its first reading position. But the Council
and Member States' governments are exercing a powerful pressure on Members
of the European Parliament, and the final result is uncertain.

Being convinced that the right to privacy should not be undermined by the
State, I invite you to examine the issue and eventually to communicate
your views to me or - much better - directly to the Members of the
European Parliament.
  Sincerely,

Marco Cappato
MEP
draftsman on the directive on the protection of privacy
in electronic communications


Marco Cappato MEP
Tel 0032 2 2847496, Fax 0032 2 284 9496
mcappato@europarl.eu.int


Annex: Article 15, par.1 as modified by the Council states: "Member States
may adopt legislative measures to restrict the scope of the rights and
obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and
(4), and Article 9 of this Directive when such restriction constitutes a
necessary measure to safeguard national security, (i.e. State security)
defence, public security or the prevention, investigation, detection and
prosecution of criminal offences or of unauthorised use of the electronic
communications system, as referred to in Article 13(1) of Directive
95/46/EC.  To this end Member States may inter alia provide for the
retention of data for a limited period justified on the grounds laid down
in this paragraph, in accordance with the general principles of Community
law.

Article 15, par. 1 as modified by the EP states: "Member States may adopt
legislative measures to restrict the scope of the rights and obligations
provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and
Article 9 of this Directive when such restriction constitutes a necessary,
appropriate, proportionate and temporary measure within a democratic
society to safeguard national security, defence, public security, the
prevention, investigation, detection and prosecution of criminal offences
or of unauthorised use of the electronic communication system, as referred
to in Article 13(1) of Directive 95/46/EC. These measures shall be
entirely exceptional, based on a specific law which is comprehensible to
the general public, and shall be authorised by the judicial or other
competent authorities on a case-by-case basis. Under the EU Charter of
Fundamental Rights, the European Convention on Human Rights and pursuant
to rulings issued by the European Court of Human Rights, any form of
wide-scale general or exploratory electronic surveillance is prohibited.




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