Data retention ‘illegal’, Europe claims

IRISH legislation which forces telecommunications companies to retain data on all calls, emails and text messages for three years is illegal, according to Europe’s Data Protection officer.

Under new powers to tackle terrorism and crime, companies have to retain all information, which can be accessed by gardaí.

Ireland is the only country to adopt such a long retention period and is now one of four countries pushing the EU to adopt similar legislation.

European Data Protection Supervisor Peter Hustinx yesterday questioned the legality of such a move and raised concerns about two similar proposals being considered at EU level.

The former Dutch judge said: "This is an incredibly sensitive issue. The directive has a direct impact on the protection of privacy of EU citizens and it is crucial that it respects their fundamental rights, as settled by the case law of the European Court of Human Rights. A legislative measure that would weaken the protection is not only unacceptable but also illegal."

Retaining data for longer than six or 12 months was not acceptable and the length of time it can be held must be strictly limited, he said.

The Irish Data Protection office last year warned about the dangers of holding information for too long but Justice Minister Michael McDowell ignored them.

Compliance officer with the Irish Data Commission, Séan Sweeney, said yesterday the legislation could well be in conflict with the Convention on Human Rights adopted by Ireland last year. "It would not be a surprise if someone challenged it in the

European Court of Human Rights," he said.

Data Protection offices throughout the EU and human rights organisations have warned that the longer data is held the greater chance there is that it will be abused.

Research showed that data older than a year had not been useful to security and police in pursuing crimes. "There is the danger that the State will start to trawl through such a large database to make a case rather than using it on a case by case basis," he said.

Mr Hustinx said he was not convinced of the necessity of the proposed legislation. But if it is to be introduced then it should be just for strictly limited retention periods of no longer than 12 months.

A spokesperson for Justice Commissioner Franco Frattini said they are studying Mr Hustinx's report carefully. There are two proposals on data retention one from Commissioner Frattini and one before the Justice Ministers sponsored by four countries, including Ireland.