Update on the Belgian transposition of the Data Retention Directive
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Deutsch: Belgien: Neues zur Umsetzung der Vorratsdatenspeicherung
The transposition of the Data Retention Directive in Belgium has remained stagnant for a long time. Following a public consultation in May 2008 on a first draft law proposal and draft royal decree to transpose this Directive into Belgian law, a broad group of organisations voiced a strong position against the Data Retention Directive and the way in which the Belgian government wanted to transpose this into the national law.
Not only did the government choose for a maximal transposition (e.g. a retention period of 24 months), but the Belgian government also chose to extend the data retention scheme provided by the European Directive (e.g. demanding more data to be retained, such as banking data, and allowing access and use of these data beyond 'serious' crime). Even the Belgian Data Protection Authority (DPA) delivered at that time, and for the first time ever, a completely negative advice on the draft law proposal and royal decree.
Together with the public campaign on the website bewaarjeprivacy.be, all the above had an impact on some political parties taking part in the federal government, especially the French speaking ones, which made it hard - given the more general mistrust in the Belgian federal government between Dutch speaking and French speaking parties - to find a political agreement on the matter and for the responsible cabinets to proceed without adjustments.
Behind the scenes, the responsible cabinets continued negotiating with representatives from telecom operators, internet service providers and law enforcement agencies. In close cooperation with law enforcement agencies, especially the Federal Computer Crime Unit, the responsible cabinets also presented a rather extensive document to the Belgian DPA in response to their prior negative advice to justify a maximal transposition. The document made some minor changes based on some of the remarks made following the public consultation in May 2008, but did not address the more fundamental issues. In general, the draft law proposal and royal decree remained the same and the justification for this set out in the annex was insufficient because of the arbitrary and incomplete nature of the evidence presented.
Nevertheless, the Belgian DPA changed its advice from negative on the whole to positive provided that some changes were made (e.g. a retention period of 12 months; a restriction of the data retention obligation to providers of "publicly" available electronic communications services or of a "public" communications network; a clear definition of "exceptional circumstances" under which the maximum retention period can be extended).
The responsible cabinets adapted the draft law proposal and royal decree according to most of the remarks made by the Belgian DPA and recently pressured the united commissions of Justice in the Chamber and Senate into holding a debate on data retention.
First the Minister of Justice himself came to the Parliament on 20 January 2010 to convince the Parliament of the urgent need for a Belgian data retention scheme and to cautiously check whether a political majority could be found in Parliament to agree on a data retention law before June 2010. Hardly two weeks later, on 2 February 2010, a hearing was organized with representatives of many stakeholders, but it was clear that everything had to take place within a tight period of time, leaving hardly any room for a sincere debate.
The reason behind this strategy is the upcoming Belgian presidency of the European Union in the second half of 2010 and the eagerness of the government to prove their ability to lead the evaluation of the Data Retention Directive at the European level. The Minister of Justice indicated that the Data Retention Directive had provoked a lot of consternation throughout European Member States, but didn't draw any conclusions for a national approach on the transposition of this Directive. On the contrary, the minister argues for a swift transposition with an final deadline in June 2010. The reason for this deadline is clear, since the Belgian government will take over the presidency of the European Union as of 1 July 2010 and it wants to prevent looking silly for not having transposed the Directive yet while having to lead its evaluation at the European level.
Belgium rightly considers the Data Retention Directive and its evaluation as a very important dossier since there are many opposing views throughout the European Union with some wanting it annulled or at least restricted and others, among which the Belgian government, wanting it to be extended (e.g. concerning the list of data to be retained and the retention period). Nevertheless, it is a weak argument to ignore human rights especially since the absolute necessity of data retention has never been proven, nor at the European level nor at the Belgian level.
At the moment, it is unclear how and when the responsible cabinets will proceed with their plans for a Belgian data retention scheme. No formal decisions were taken at the recent hearing but given the urgency with which the Minister of Justice is treating this dossier, one can only expect to find a formal law proposal to be introduced in Chamber or Senate very soon. However, some of the representatives of the Chamber and Senate that attended the hearing (and of whom some are important representatives of the same political parties that make up the government) were very critical of data retention in general and the presented draft law proposal and royal decree in particular. One of their demands was to wait for the final verdict of the German Constitutional Court before starting legislative work on transposing the Data Retention Directive.
Campaign against the Data retention in Belgium
Consultations on Data retention (17.05.2008 and 18.06.2008)
(only in Dutch)
http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/18-06-08_... (only in French)
Draft Law on Data retention (in Dutch and French, 27.08.2009)
Belgium Data Protection Authority Opinions (2008)
(only in Dutch)
http://bewaarjeprivacy.be/sites/www.bewaarjeprivacy.be/files/20080903_... (only in French)
Note of the Minister of Justice (20.01.2010, only in Dutch)
http://bewaarjeprivacy.be/sites/bewaarjeprivacy.be/files/201001_Debatn... (only in French)
(Contribution by Maartje De Schutter - Liga voor Mensenrechten, Belgium)