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Wed, 8 December 2014: 'Can provider store data?'

Judge must provide clarity

It is an uncomfortable position for providers. On the one hand, Europe's highest court has ruled that storing data on customers' call and internet behaviour is unconstitutional, on the other, Justice Minister Opstelten has told them to just keep track of who is calling whom, or which e-mail addresses are in contact with each other.

If the providers listen to the European Court and stop the storage, high fines are imminent. If the companies obey the minister, they will knowingly violate their customers' fundamental rights.

An interim injunction must now provide a solution. The provider BIT, privacy advocate Privacy First, journalist union NVJ and the Dutch Association of Defence Counsel, among others, are going to court in the hope that the court will dismiss the Data Retention Obligation Act. The organisations point out that it is not only the European Court that considers this obligation a gross violation of citizens' privacy. The Council of State also advised the minister to suspend the storage of telecom data.

But Opstelten refused to do so, saying he was going to amend the law anyway. After the European Court ruled in April that the European directive regulating data retention should be scrapped retroactively, Opstelten has been reviewing the Dutch implementation of that directive. According to him, he can meet the court's requirements with a number of adjustments. For instance, access requests will soon have to be tested by a judge and there will be stricter rules for storage. Meanwhile, the retention obligation will remain in force, as Opstelten says it is an important tool in tackling serious crime.

The organisations going to court disagree. Privacy First calls the retention obligation a gross violation of the privacy of all citizens. Provider BIT was already fiercely opposed when it was introduced in 2009. The journalists' union is worried about source protection, which is not guaranteed by the data storage.

Online civil rights organisation Bits of Freedom already called on the providers to go to court last week. Other organisations also stirred. Vodafone, for instance, asked the minister for clarification, now that "it is unclear what we should and should not retain now."

Source: Wed 8 December 2014, p. 6. See also