The EU has evaluated the data retention directive (DRD) and come to the conclusion that is serves its purpose and is working efficiently. However if one looks at the draft report (via vorratsdatenspeicherung.de), a few questions remain, mainly concerning the methods of the evaluation and some particular statements.
As a consequence, the evidential value of retained data must be assessed on a case-by-case basis in the light of all the relevant factors of a case. ….. Since law enforcement resources are limited the fact that retained data are used, signify they were deemed relevant. …. The retention of data is considered proportionate if it has considerable law enforcement relevance. (pp. 7)
Although the questionnaire used for the evaluation seems well designed, a few question remain, considering the statement above:
- I cannot find any definition of neither relevance, nor efficiency concerning data retention and law enforcement. What are the cost? Do they matter? What is considerable and who defines those categories?
- The statement indicates that a measure is reasonable if it can be used and in fact is used – just because it is there. This looks as if it would justify its own existence by itself.
- Although the report mentions that some member states only use retained data if other less intrusive mesures have failed – there is no mention of what these could be.
The evaluation is concerned if and how the DRD works and if is feasable, what problems occur among the different stakeholders, but it does not tell any preceding criteria have been agreed upon which such an evaluation assesses matters such as the efficiency of law enforcement or not. I believe this to be a cruical point in the report of evaluating, given that the DRD is also considered to be a major infringement on privacy rights by many advocacy groups. The DRD certainly fits the purpose stated on page 20 of the report to “establish the extent to which the harmonisatons of obligations on information service providers ist able to ensure that data are available for the purpose of the investigation…. , and the degree of effectiveness of national measures to trace the identity of users to combat the criminal misuse and anonymous use of electronic communications”. In my view it cannot make an assessment of whether these measures are reasonable, as this has not been defined. As the DRD was designed to support law enforcement, its impact on law enforcement will be positive – from a law enforncement perspective. Other assessments are not very likely to be drawn from this evaluation, which from a neutral standpoint is a shortcoming of this evaluation report.