20131211 Zivilgesellschaft durch Lobbyvertreter repräsentiert

Data Privacy: censoring the debate

When whistle-blower Edward Snowden revealed in June 2013 that the top-secret US PRISM programme was collecting phone and internet records of European citizens, the reaction from the Commission was forceful. The US justified the programme on grounds of security, but Viviane Reding, Vice-President of the Commission as well as EU Commissioner for Justice at the time, stated that “the data protection rights of EU citizens are non-negotiable.” However, looking at the recent Expert Group established by DG HOME on the topic of data retention, this statement sounds less convincing.

What Ms Reding failed to mention was that the European Commission has had its own highly controversial Data Retention Directive (DRD) in place since 2006, a year before PRISM came into being. The Directive equates to blanket and indiscriminate retention of all telecommunications, holding them for a minimum of six months up to two years, and has been heavily criticised by human rights and privacy campaigners.

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Yet despite the Directive’s controversial scope and its impact on citizens, as well as the current de facto rules surrounding Expert Groups, the newly created Data Retention Experts Group is dominated by the telecommunications industry, has individuals representing corporate interests sitting in a personal capacity and has no civil society representatives. Those aware of the group’s incredibly controversial predecessor, the Platform for Electronic Data Retention for the Investigation, Detection and Prosecution of Serious Crime – in which among other problems, all seats not given to government interests went to representatives of big business interests, namely the telecommunications industry, and attempts to open it up to civil society organisations were repeatedly rejected – will not be surprised at the features of its latest incarnation.

Among the seven members not representing government interests, all five of the organisations (Cable Europe; EuroISPA; European Competitive Telecommunications Association, ECTA; European Telecommunications Network Operators Association, ETNOA; GSM Association) are there on behalf of telecommunications giants. Gerald McQuaid, the sole “representative of an interest” – a category given by the Commission to members sitting in an individual capacity but who are not independent – is listed in the Register as Chair of the European Telecommunications Standards Institute Lawful Interception and Data Retention Committee, an industry standardisation body, but it fails to mention he is a senior manager at Vodafone. Incidentally, Vodafone is also a member of EuroISPA (via national associations) and ECTA, and more worryingly, was also fined €76 million after its data retention mechanisms in Greece (i.e. wire taps) were hacked with the phones of the Prime Minister and many of his cabinet members being bugged. Completing the group is Christopher Kuner, Senior Of Counsel in the Brussels office of corporate law firm Wilson Sonsini Goodrich & Rosati, wrongly listed as there in a personal capacity. As well as advising corporate clients how to operate around privacy legislation while staying within the letter of the law, he is also the Chairman of the International Chamber of Commerce Task Force on Privacy and the Protection of Personal Data – not a role that can be considered independent.

While big business gets to ensure the Data Retention Directive is implemented to its liking (in the US, the telecommunications industry has been handsomely compensated by the US government for providing data), voices of civil society groups have been purposefully excluded. This may be explained by the call for applications: while open (although not in the Register), it explicitly states that members must have “a genuine commitment to efficient and effective implementation of the Data Retention Directive,” and if selected, “help ensure that the Directive continues to fulfil its intended aims.” Not only does this undermine the role of Expert Groups in providing diverse stakeholder input and excludes genuine expertise on the topic, it also ensures those selected will be unable to answer the group’s own mandated question of whether the directive is fulfilling its ‘intended aims’. The intentionally-narrow and technical focus is being used to mask the broader political questions still unresolved by its predecessor.

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