Europe Won’t Indicate on Direction It Will Take Data Retention Laws

Europe’s controversial data retention laws is once again in the news. Now, it’s unclear where the laws will be headed next.

Digital rights organization, EDRi, is currently noting that Europe is not saying where these laws are heading next. From the post:

On 6 June 2019, representatives from eight civil society organisations (including EDRi members) met with officials from the European Commission (EC) Directorate General of Home Affairs (DG HOME) to discuss data retention. This meeting, according to the EC officials, was just another one in a series of meetings that DG HOME is holding with different stakeholders to discuss potential data retention initiatives that could be put forward (or not) by the next Commission. The meeting is not connected to the publication of the conclusions by the Council on data retention published also on 6 June which coincidentally tasks the Commission with doing a study “on possible solutions for retaining data, including the consideration of a future legislative initiative”.

Ahead of the meeting, civil society was sent a set of questions about the impact of existing and potentially new data retention legislation on individuals, how a “legal” targeted data retention could be designed, and what are the specific issues (data retention periods, geographical restrictions, and so on) that could be included in case new data retention legislation were to be proposed.

According to the Commission, there are no clear “next stages” in the process, apart from the aforementioned study that will have to be prepared after the Council conclusions on data retention published on 6 June. The Commission will, in addition to this study, continue dialogues with civil society, data protection authorities, EU Fundamental Rights Agency and Member States that will inform a potential future action (or inaction) from the EC on data retention.

Europe’s data retention laws has been one of Europe’s longest running digital rights battles dating clear back to 2006. This, of course, dates clear back to nearly the very beginning of my news writing career. From my perspective as someone who’s covered digital rights focusing on copyright issues, my experience with this story has been as someone who lives in a universe parallel to this long-standing issue.

In 2006, there were plenty of copyright related issues floating around. eMule, Shareaza, and Limewire were big file-sharing clients at the time. The focus gradually started shifting from what new innovation is on offer next in file-sharing to that of where lawmakers were taking copyright laws next. So, already, coverage of what laws were being passed at the time is generally quite sketchy.

In addition to this, there was quite a lot of discussion surrounding how one covers digital rights issues as it reaches the political realm. As bizarre as it sounds, there was a substantial amount of pushback against covering anything that relates to politics. The fear is that it would expose political divisions within the community and break up what would otherwise be a somewhat harmonious system.

The problem with that is that politics really doesn’t care about the impact of the community simply discussing copyright from a political perspective. It’s going to start tackling the issue regardless because there is a lot of lobbying power behind changing the laws. So, refusing to cover what is going on at the political level significantly undermines your mission to inform the community what is going on. Whether you like it or not, politics and digital rights will become intertwined sooner or later. Either get on with the program and do your job or risk getting let behind. That was my perspective, but had no shortage of people rolling their eyes and thinking of me as somehow misinformed or ignorant of the big picture.

Now, the debate over whether or not to cover political related movements that impact digital rights sounds quaint these days. There are whole NGO’s and political parties devoted to digital rights issues.

Another reason why coverage of this issue from the earlier years is sketchy is partly because I personally was just learning how political systems work. If I only have a foggy idea of how my own country works for the purpose of accurately reporting on digital rights, what are the chances of being able to cover a political system as complex as Europe anyway? That’s one of the reasons why I focused so heavily on Canada in the mid-2000’s. I was reporting what I knew and what I was learning at the time.

By the time I was moving from one site to another, I started building confidence in covering other countries like the US, Australia, the UK, and the rest of Europe.

A third reason why coverage is so sketchy at the beginning is that privacy rights online (and the term “digital rights” for that matter) was an unknown commodity at the time. There is plenty of things to cover in relation to copyright as it is, so motivation to figure this all out was low at the time. Then, there is the question of whether or not this needed coverage to begin with. Is covering government surveillance going to come off as more conspiracy theory rather than credible journalism? At the time, that was not an easy question to answer – and some did handle it in a way that made it sound like conspiracy theories.

Naturally, hind-sight is 20/20. By 2007, Canada was having debates surrounding Lawful Access. By 2008, the US congress passed warrantless wiretapping and it became increasingly clear that government surveillance is something that needs to be covered. Even at that time, covering this was something of a revolutionary concept. Plenty were still skeptical about whether or not such stories were worthy of coverage. Doubts began being erased about this angle when the German copyright industry tried (and failed) to use the government surveillance program to track down and sue alleged file-sharers.

As for Europe’s data retention laws, significant political pushback began happening. In 2010, the data retention laws were declared unlawful. That pushback also made it into the courts. This is thanks to the efforts by Digital Rights Ireland who took those laws to court and won. A ruling by the European Court of Justice said that the data retention directive was invalid.

Now, the legal certainty around carrying out data retention is highly questionable. According to EDRi, no case was brought against any European member state even though the retention of data is very likely illegal. With no real path forward by Europe, the problems surrounding data retention is going to continue to this day.

Drew Wilson on Twitter: @icecube85 and Facebook.

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