EU MOVES TOWARD LEGISLATION ON RETENTION

UNCLAS SECTION 01 OF 02 BRUSSELS 004296

SIPDIS

STATE FOR INL/PC SCOTT HARRIS
DOJ FOR D/A/AG BRUCE SWARTZ

E.O. 12958: N/A
TAGS: PREL PTER CMGT CVIS KCRM EUN USEU BRUSSELS
SUBJECT: EU MOVES TOWARD LEGISLATION ON RETENTION
OF TELECOMS DATA

REF: USEU BRUSSELS 3743

SUMMARY
--------------


1. The UK Presidency in the December 2 meeting of
EU Justice and Home Affairs ministers (JHA Council)
secured a majority agreement on a compromise to
approximate member states' legislation on the
retention of telecom data. Ministers agreed to
require the storage of traffic information for a
minimum of 6 to 24 months, but did not set a maximum
time period, thereby accommodating member states
with legislation on longer storage. UK Home
Secretary/JHA Chair Charles Clarke was confident the

SIPDIS
package would win the necessary backing of the EP
next week. Full text of Council conclusions has
been transmitted to EUR/ERA. End summary.

RETENTION OF TELECOM DATA
--------------


2. The EU JHA Council on December 2 agreed on
proposals for submission to the European Parliament
on a draft Directive requiring telecommunications
companies to retain phone and Internet traffic data
for a minimum period of 2 years and 6 months
respectively. The draft is intended to facilitate
judicial cooperation in criminal matters by
approximating member states' legislation on the
retention of data. The text covers traffic and
location data generated by telephony, SMS and
Internet, but does not/not cover the content of the
calls. Up to 15 member states currently do not have
mandatory rules on the retention of data, including
the UK, which has a voluntary code.


3. The British Presidency, which set the adoption
of EU legislation setting a data retention
obligation as a key objective of its six-month term,
watered down its initial ambitions (REFTEL) to
secure a qualified-majority agreement on revised
measures in the Council and meet the EP's concerns.
Key elements of the compromise package are as
follows:

-- Retention periods: member states will ensure
to retain transmission data for periods of not
less than 6 months (internet) and for a maximum
of two years (telephony) from the date of the
communication;

-- Internet data: the Council is in favor of an
obligation to retain data on Internet access,
Internet e-mail and Internet telephony;

-- Unsuccessful calls: the Council is in favor of
including the retention of data in relation to
unsuccessful call attempts where the data are
"generated or processed, and stored (telephony
data) or logged (Internet data) by providers of
publicly available electronic communications
services or of a public communications network
within their jurisdiction in the process of
supplying the communication services
concerned." The Directive would not require
the retention of data in relation to
unconnected calls;

-- Serious criminal offences: A reference to
serious crime was included in the draft, as
defined by each member state in its national
legislation. The EP is pushing for access by
law enforcement agencies to the data to be
restricted to serious crime -- the 32 offences
listed in the EU legislation on the European
Arrest Warrant. The Council compromise
specifies that member states "shall have due
regard" to that list and crime involving
telecommunication.


4. Ministers also confirmed their decision to leave
it up to each member state to compensate their
national telecom providers for increased costs if
they so wish.


5. The Council compromise was resisted by Ireland,
Slovenia and Slovakia, who insisted the matter
should be dealt with under inter-governmental
cooperation, thus objecting to the involvement of
the EP. Irish Justice minister McDowell reiterated
his threat to take the issue to the EU Court of
Justice.


6. With the Commission firmly backing the Council's
compromise and based on consultations with key EP
leaders, the Presidency will now seek the necessary
approval of Parliament and reach a "first reading
deal" under the co-decision procedure by the year's
end. UK Home Secretary/Council Chair Charles Clarke
was confident Parliament would agree the package in
Strasbourg next week. This "will make a very clear
statement that all of the institutions of the EU,
the Council, the Commission and the Parliament stand
firm in the fight against terrorism and defeat of
organized crime," Clarke stated. Spanish Justice
Minister Juan Fernando Lopez, noting that data
retention had been crucial in investigating the
March 2004 attacks in Madrid, said: "A consensus
that allows for one step forward is better than
nothing."

OTHER JUSTICE ITEMS
--------------


7. In its discussions of other "justice items," the
Council:

-- Reached a "general approach" on a draft
Regulation aimed at simplifying and reducing
the costs of litigation in cross-border cases
concerning uncontested money claims and
permitting the free circulation of European
orders for payment throughout all member
states;

-- Reached agreement on a number of specific
issues under a draft Regulation establishing a
European procedure simplifying litigation on
small claims in cross-border cases;

-- Reached a "common understanding" -- subject to
further clarification of some issues -- on a
draft Directive concerning mediation in civil
and commercial matters;

-- Noted progress on a Framework Decision on
procedural rights in criminal proceedings
throughout the EU;

-- Remained split on a Framework Decision on the
European Evidence Warrant (EEW) for obtaining
objects, documents and data for use in
proceedings in criminal matters. The aim is to
establish a mechanism to facilitate the
obtaining of evidence in cross-border cases
based on mutual recognition principles.

MCKINLEY