NU.co.uk, 18 February 2015: 'Government stretches time to maintain retention obligation'

“The government is stalling to maintain the controversial telecom data retention obligation. This is what the plaintiffs argue in summary proceedings against the Dutch state over the validity of the retention obligation.

The Council of State, Senate and the Dutch Data Protection Authority (CBP) agree that the law is actually invalid, the plaintiffs argued Wednesday during the summary proceedings.

The State was taken to court by a group of seven organisations, including Privacy First, internet provider Bit and the Dutch Associations of Journalists and Criminal Lawyers.

"The government seems to want to maintain the current situation as long as possible. Unfortunately, this does happen more often," said lawyer Fulco Blokhuis, who represented the plaintiffs. The State denies the allegation. "This is a sensitive issue and it should not be dealt with hastily," said lawyer Ronald van den Tweel.

Among other things, his colleague Otto Volgenant pointed out that State Secretary Teeven (Justice) had said in the Senate in September that an opinion from the Council of State on the matter was still awaited. However, that opinion had already been sent and dated from more than two months earlier.

The retention obligation

The retention obligation has existed since 2009, when a Dutch law was introduced in accordance with a European directive. Since then, 'metadata' on Dutch phone usage has been stored for a year, and data on internet usage for six months.

This includes the numbers called from a phone and the time of calls, the ip addresses used by Dutch citizens, and the location of mobile phones in the form of the mast numbers they contacted. This data is stored for use by investigative agencies.

Human rights

The European Court ruled last year that the European data retention obligation violates fundamental human rights in several areas. Europe's highest court stated that data of all citizens are stored even if they are not suspected of a crime.

Moreover, the court found it unacceptable that there was no clear limitation on who was allowed to see the data. There was no judicial review, allowing data to be accessed too often.

"Saliently, Mininster Opstelten shares these conclusions that the law cannot be upheld," Volgenant said on Wednesday. He pointed to a letter to the House of Representatives from Opstelten (Justice). In it, he said he accepted the advice of the Council of State and wanted to amend the law.

Adjust

However, before this legislative change is approved, the current law will remain in force. Prosecutors find this unacceptable, as the European Court has already ruled that the European version violates citizens' privacy. Two Senate committees also already suggested that the government start implementing the proposed changes now.

Updating the law is taking too long, privacy groups and providers also argued in the case. "The government is taking ample time for a non-necessary intermediate step, namely an internet consultation. This can be seen as time-wasting."

The government denies this. "There is no question of that, it is handled carefully. Precisely by entering into that consultation," the country's lawyer said.

Importance

In its defence, the government pointed in particular to the importance of telecom data in detection. In the case involving child abuser Robert M., among others, this data has been used to track down victims and co-defendants.

In the fight against child pornography, the retention obligation is essential, the State said. "These forms of crime leave their traces almost exclusively on the internet and can therefore only be detected with the help of the internet."

Check

Moreover, there is already a check before data can be accessed. The public prosecutor can also do this check instead of a judge, said country lawyer Van den Tweel. He also pointed out that the law requires data to be stored securely.

The plaintiffs called it "disturbing" that the government equates control by the prosecution with control by an independent judge.

According to the government, the proposed change in the law is only about introducing additional safeguards. The judicial review being introduced is "heavier than is prescribed for intrusive means such as, for example, infiltration [going undercover, ed.]", the country's lawyer said.

The court will rule on 11 March 2015."

Source: http://www.nu.nl/internet/3995234/overheid-rekt-tijd-bewaarplicht-in-stand-houden.html, 18 February 2015.