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Telecommunications Data Retention and Human Rights (European Law Journal, Vol. 11, No. 3, May 2005)
The existence of various ways of communicating anonymously, the use of which is likely to increase as a reaction to traffic data retention, raise fundamental doubts as to the benefit of data retention. There is a range of methods for preventing either the generation of traffic data or access to it by European authorities.
For example, it is easy for criminal offenders to use mobile-phone cards that have been registered in the name of another person or even bought in a country that does not require registration. Only if the world community cooperated closely would it be possible to prevent anonymous telecommunication from taking place. Realistically, however, such cooperation is not to be expected. In any case, criminal offenders cannot be expected to observe laws banning the use of anonymous telecommunications. Therefore, traffic data retention cannot stop more experienced criminals from preventing the generation of incriminating traffic data.
In summary, data retention can be expected to support the protection of individual rights only in a few, and generally less important, cases. A permanent, negative effect on crime levels, even in the field of cyber-crime, is not to be expected. The potential use of data retention in fighting organised crime and in preventing terrorist attacks is marginal or non-existent.
In determining the proportionality of data retention, its negative effects need also to be taken into account. Generally, the seriousness of an interference with human rights is to be judged according to the preconditions of powers granted, the number and nature of individuals affected and the intensity of negative effects. In doing so, the harmful effects that are certain to happen are not the only ones that need to be taken into account. Serious risks (such as abuse of power) need to be considered as well.
Contrary to popular opinion, access to traffic data cannot be considered less privacyinvasive than the surveillance of the content of telecommunications.
The information value and usability of traffic data is extremely high and at least equals that of telecommunications content. First, traffic data can be processed much more effectively than content data. Traffic data can be analysed automatically, combined with other data, searched for specific patterns, and sorted according to certain criteria, all of which cannot be done with content data. Second, authorities often are, at least initially, interested in obtaining traffic data only. An interest purely in the contents of telecommunications does not occur in practice. Traffic data provides a detailed picture of the telecommunications, social environment, and movements of individuals. The information value of traffic data can, depending on the circumstances, be equal to or exceed that of communications contents. It can therefore not be said that traffic data is typically less sensitive than content data, and it is not justified to apply a lower level of legal protection to traffic data than to content data.
Experience shows that the risk of powers being abused, especially where they are exercised in secret, must not be underestimated, even in Europe. Furthermore, where the government prevents the effective protection of personal data because of its appetite for surveillance, it opens up the gates for misuse of the data by third parties. Innumerable facts about the private life of prominent members of the public could be obtained by analysing traffic data. In the event of unauthorised access to retained traffic data, politicians could be forced to resign and officials could be blackmailed. Last but not least, traffic data is useful in gathering economical intelligence by foreign states.
Where data retention takes place, citizens constantly need to fear that their communications data may at some point lead to false incrimination, or governmental or private abuse of the data. Because of this, traffic data retention endangers open communication in the whole of society. Individuals who have reasons to fear that their communications could be used against them in the future will endeavour to behave as unsuspiciously as possible or, in some cases, choose to abstain from communicating altogether. Such behaviour is detrimental to a democratic state that is based on the active and unprejudiced involvement of citizens. This chilling effect is especially harmful in cases that attract abuses of power, namely in the case of organisations and individuals who are critical of the government or even the political system. Blanket traffic data retention can ultimately lead to restricted political activity, bringing about damage to the operation of our democratic states and thus to society.
Traffic data retention also causes increased efforts in the development of counter-measures such as technologies of anonymisation.
Where the state indirectly encourages anonymous communications in its pursuit of surveillance, it will ultimately damage its power to intercept telecommunications even in cases of great danger.
One of the harmful effects of data retention is an increase in the likelihood of erroneous decisions in criminal investigations and court procedures. In view of the difficulties in determining a user’s identity for a given telecommunications service, at a given time, and the fact that access to traffic data often affects a multitude of individuals simultaneously, this instrument bears the specific risk of leading to erroneous incrim- inations or suspicions. Furthermore, retaining traffic data creates potential risks of abuse by state agencies. Traffic data can be extremely useful for political control, for example, by intelligence agencies.
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