The new EU Commission plans to re-introduce Telecommunications Data Retention, as we learned in Brussels yesterday. A spokesperson of the Commissioner for Home Affairs confirms that it is no longer a question „if“ there will be a directive, only „how“. But the European Court of Justice ruled: suspicionless mass surveillance is disproportionate and violates fundamental rights.

This is a translation of the original German article.

However, the European Commission is currently working on a new Directive for the Retention of Telecommunications Data, as netzpolitik.org learned in the European Parliament. According to our information, Dimitris Avramopoulos, the EU Commissioner for Migration, Home Affairs and Citizenship, wants to announce a new proposal for mass surveillance of digital communication in mid-2015.

In April, the European Court of Justice overturned the 2006 Data Retention Directive, because the suspicionless mass surveillance is disproportionate and violates fundamental rights.

Now a spokesperson of the Commissioner of Home Affairs (HOME) confirmed to netzpolitik.org:

The issues raised by the Court are very complex and require careful assessment of their impacts. The Commission is currently undertaking such an assessment, involving the relevant constituencies such as law enforcement and data protection authorities.

When asked „Does that mean, HOME is still assessing *if* there should be a new Directive at all? And *not* working on a draft of a new Directive?“, the spokesperson replied:

No, we are now reflecting on the how, rather than the if.

In June, Avramopoulos‘ predecessor Cecilia Malmström announced that she would not propose a new Directive on the subject, especially not before the EU data protection reform is completed. Even back then, we already suspected that this promise would only count for the old EU legislative term.

Even if a new proposal would integrate shorter retention periods, stronger data security requirements and polling rules such as a court decision requirement, the inherent problem of every kind of data retention is that it is not based on suspicion: All communications data of the entire European population should be stored, because some of that data might be useful for criminal investigations one day. (Terms like necessity and proportionality – originally principles of the rule of law – have been bid farewell by the EU Commission years ago.)

In July, a study by two law professors had shown that the that the European Court of Justice „has delivered a key judgement“ that „has major consequences“. The „general and undifferentiated nature of data retention measures“ is a serious violation of fundamental rights.

Therefore, any new attempt for a Data Retention Directive is fatal signal for the new EU Commission. Data retention is dead, and it should stay that way. Especially after Snowden.

Update: After our report, the Commission is backpedaling. The spokeswoman said:

Seeing your piece today I think there has been some confusion. I meant that we are now reflecting on the how to take things forward, rather than if we need a new directive or not.

In addition, she quotes two paragraphs from Avramopoulos‘ speech in the Committee on Civil Liberties, Justice and Home Affairs in the European Parliament. Asked about a simple „yes“ or „no“ answer on „is DG HOME working on a new DRD?“, she replied:

To be clearer: the answer is „no“. The Commission intends to take the necessary time to undertake the evaluation. On that basis, the Commission will be able to reach a position as to whether there is a need for a new legislative proposal. It is therefore wrong to assume that work on a new proposal has started.

This probably means that there is no document officially titled „draft directive proposed by the Commission“ yet. However, the Commission is working on a way to deal with the issue of Data Retention after the ECJ ruling. It is also clear that the Interior Ministers of the 28 Member States are urging the Home Commissioner to propose a new Directive. We would be pleased for the Commission to realize that suspicionless mass surveillance violates fundamental freedoms and reverse this policy direction. Until then, we fear the worst.