Proposed European legislation on data retention may be illegal, according to lawyers at the European Council and Commission.
The offending sections of the proposed framework agreement on data retention are the requirements the law would impose on communications service providers. The legal eagles argue that such rules should be addressed by the EU's regulation of the telecoms industry, covered in internal market legislation, Statewatch reports.
The framework document, proposed in April last year by the UK, will require communications service providers to keep user data for a minimum of a year, and possibly indefinitely. Service providers have long been concerned about how much it will cost them to comply with the stringent requirements on keeping and storing data.
In December 2004, the Council reviewed the proposal, concluded it did not go far enough. It called for service providers to be required to retain all the data "processed/generated by the service provider, even if the data have no interest for the service provider".
At the time, EU Policy Director Political Intelligence Joe McNamee, said that the revisions demonstrated a "scarcely believable lack of technical awareness".
According to Statewatch, if the opinion of the EU's legal team is accepted, then the data retention proposal will have to be redrafted to remove all references to the obligations of telecom service providers.
The civil liberties activists go on to point out that the Council and Commission lawyers have confined their evaluation of the proposal to determining whether the law should be part of the EU's criminal, or economic legislation. Statewatch argues that the proposal is fatally flawed because it infringes on the right to privacy, guaranteed by the EU Charter of Fundamental Rights. ®