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Abstract
This article looks at two recent European Union (EU) developments in the field of data protection: the issue of Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (OJ 105/54); and the debates going on surrounding the proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters. The article reflects on why (and how) these two developments came about, and their potential effect on the future development of data protection and beyond. The rest of the articles published in this special issue of the journal reflect on the different aspects of Islamic legal traditions and the concepts of privacy and data protection. This article argues that, unthought-of perhaps, the counter process is taking place too: data protection principles at an EU level are being watered down in the name of a crusade against Islamic fundamentalism. It also argues that in spite of this apparent watering down of principles that is happening, some positive aspects are also emerging; the much awaited introduction of the application of data protection rules in the field of police, security and justice is finally happening—not as one would hope for perhaps, but making its way nonetheless.
Notes
1 Mr Gijs de Vries was appointed Counter-terrorism Coordinator.
4 Note from the General Secretariat to the Delegations on The Hague Programme for strengthening freedom, security and justice in the European Union as approved by the European Council at its meeting on 5 November 2004 (Doc. Ref. 16054/04 JAI 559 dated 13 December 2004), at p. 18.
5 Note from the General Secretariat, p. 18.
6 The Hague Programme: Ten priorities for the next five years. A partnership for European renewal. Description of Priority 7. A coherent approach to privacy and security: Privacy and security in sharing of information. Striking the right balance. Available online at: http://ec.europa.eu/justice_home/news/information_dossiers/the_hague_priorities/doc/07_privacy_en.pdf.
7 Communication from the Commission to the Council and the European Parliament: The Hague Programme: Ten priorities for the next five years. The Partnership for European Renewal in the field of Freedom, Security and Justice (Doc. Ref. COM (2005) 184 Final dated 10 May 2005). Available online at: http://ec.europa.eu/justice_home/news/information_dossiers/the_hague_priorities/doc/com_2005_184_en.pdf.
8 Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks; OJ 105/54.
9 See speech by Gijs de Vries, EU Counter-terrorism Coordinator, delivered 13 May 2004: The European Union's Role in the Fight against Terrorism. Available online at: http://www.liberal-internation.org/contentfiles/files/de%20Vries%20Speech.pdf.
10 See Cohen, N. (2006) Memo to EU: We call it Islamic terrorism because it is terror inspired by Islam, The Observer, 14 May. Available online at: http://observer.guardian.co.uk/comment/story/0,,1774558,00.html.
11 There are reports that the EU has compiled a lexicon of terms that can and cannot be used in this context (see, e.g., Waterfield, B. (2006) EU moves on new media rules on religion, The Parliament.com, 9 February 2006. Available online at: http://www.eupolitix.com/EN/News/200602/83041a0d-8b56-484d-99c8-8ac53d84235e.htm.
12 E.g., ‘We are seeking to engage with moderate Muslims in defence of our common commitment to a humane society, free from terrorism’ (Speech by de Vries, The European Union's role in the fight against terrorism, 13 May 2004).
13 E.g., speech by EU Commissioner for External Relations and European Neighbourhood Policy Benita Ferrero-Waldner, delivered 27 March 2006 to the Euro-Mediterranean Parliamentary Assembly: Dialogue of cultures: Clash of civilizations or clash of ignorance? Available online at: http://www.europa-eu-un.org/home.
14 See Neumayer, E. & Plümper, T. (2007) International Terrorism and the Clash of Civilizations: Was Huntington right after all? Available online at: http://ssrn.com/abstract-952208.
15 See Speech by de Vries, EU Counter-terrorism Coordinator, delivered 19 January 2006: The European Union and the fight against terrorism. Available online at: http://www.cer.org.uk/articles/speech_gijs_de_vries_19jan06.html.
16 See Speech by de Vries, The European Union and the fight against terrorism, 19 January 2006.
17 Presidency Conclusions of the Brussels European Council, 21 – 22 June 2007 (Doc. Ref. 11177/07 dated 23 June 2007), p. 6.
18 Directive 2006/24/EC.
19 There are nine references to terrorism in the first proposal submitted on 28 April 2004. Doc. Ref. 8958/04 Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communication services or data on public communication networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences including terrorism. Presented by the French Republic, Ireland, the Kingdom of Sweden and the United Kingdom to Javier Solana, Secretary-General/High Representative.
20 Doc. Ref. COM(2005) 438 Final dated 21 September 2005.
21 COM(2005) 438 Final, pp. 2 – 3.
22 COM(2005) 438 Final, p. 4.
23 In recitals 8 and 9, OJ 105/54.
24 Even if in its Opinion on the Draft Data Retention Directive (Opinion WP113 of 21 October 2005) the Article 29 Working Party questioned whether the justification for any compulsory and general data retention coming from the competent authorities in Member States had been clearly demonstrated and backed up with evidence and also whether the proposed data retention periods in the draft Directive were convincing.
25 Article 3 of Directive 95/46/EC.
26 Cannataci, J., Caruana, M. & Bonnici, J. P. M. (2006) R(87)15: A slow death. In R. de Mulder & P. Klever (eds) Monitoring, Supervision and Information Technology (Rotterdam, Erasmus University Press).
27 Report to the European Parliament, 4 May 2007 (Doc. Ref. 2005/0202(CNS) Provisional), p. 33.
28 Article 3 of Directive 95/46/EC.
29 This was one of the major concerns of the European Parliament Rapporteur, Martine Roure (Presented to Parliament, 18 May 2006 (Doc. Ref. A6-0129/2006)).
30 Found in two Opinions published in December 2005 and November 2006.
31 27 September 2006.
32 Report to the European Parliament, 4 May 2007.
33 Note for the Presidency to the Delegations on the Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (Doc. Ref. 7315/07, dated 13 March 2007).
34 Speech of Lord Avebury at the Joint Parliamentary Meeting on EU developments in the area of freedom, security and justice at the European Parliament, 3 October 2006. Available online at: http://www.statewatch.org/news/2006/oct/eric-avebury-heiligendamm1.pdf.
35 Opinion of the European Data Protection Supervisor, Third Opinion on the Proposal for a Council Framework Decision on the protection of personal data process in the framework of police and judicial co-operation in criminal matters (OJ C139/1, 23 June 2007).
36 Inter-institutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation (OJ C73, 17 March 1999), p. 1.
37 See, e.g., Article 14 on transfers to third countries and international bodies; Article 12(1)(d) on further processing of personal data; Article 10 on compliance with time limits for erasure and review; and Article 13 on compliance with national processing restrictions.
38 See Report to the European Parliament, 4 May 2007.
39 Report to the European Parliament, 4 May 2007, p. 35.
40 Article 12(d) of Note for the Presidency, 13 March 2007.
41 Report to the European Parliament, 4 May 2007, p. 35.
42 Report to the European Parliament dated 4 May 2007, p. 35.
43 Council Conclusions concerning the Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, 12 June 2007. Available online at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/94634.pdf.
44 Presidency Conclusions, 21 – 22 June 2007, p. 6.
45 Prüm Treaty, p. 1.
46 Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria.
47 Cannataci et al., R(87) 15: A slow death?.
50 See, e.g., Cannataci, J. (n.d.) The Computer Misuse Act 1990: Reformed or deformed? Available online at: http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GFRC_enMT203MT203&q=Cannataci+Bhai