German data retention law prompts Euro Commission backlash

Germany’s planned data retention law has run into more trouble. But not, despite media reports, because the European Commission is “threatening to take Germany to court”, nor even because of a court ruling against the EU-wide Data Retention Directive.

On Tuesday, German stick-it-to-zer-Mann news site Netzpolitik published a leaked opinion from the EU Commission that was widely interpreted as a threat to the proposed data slurping bill. But on Wednesday the Commish was keen to quash such rumours.

“We are neither opposing nor advocating the introduction of national data retention laws. Suggestions that the Commission is considering court action against the German draft data retention law are misleading. The College of Commissioners is not contemplating such action,” said the Commish in a statement.

The reality is far more convoluted.

After the European Court of Justice ruled the 2006 Data Retention Directive was illegal last year, Germany set out a draft law in May that would force telcos to store call and email records such as number called, call duration and IP addresses for 10 weeks. Phone location data will also be stored for four weeks.

The problem is that the draft law specifies this so-called Vorratsdatenspeicherung (VDS) data must be stored on German soil, something international companies offering services in Germany might have trouble with. This law could therefore be interpreted as a barrier to cross-border EU trade.

The European Technical Standards Directive requires any national law that could, even potentially, infringe the free movement of goods and services to be notified to the EU Commission. Germany has done so in this case, but now the commission wants more time to assess the impact. In the meantime the German law must be stalled.

“As the European Commission has repeatedly said, the decision of whether or not to introduce national data retention laws is a national decision. We are aware that data retention is often the subject of a very sensitive, ideological debate and that sometimes there can be a temptation to draw the European Commission into these debates. The European Commission is not ready to play this game,” said the sternly-worded statement.

But even if the commission’s concerns regarding free trade are allayed, the law won’t pass without a fight: activists are already on the case, and the bill could wind up before Germany's constitutional court. ®