Data Retention has arrived in Austria
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Deutsch: Vorratsdatenspeicherung erreicht Österreich
While the Czech Constitutional Court has recently declared the national data retention legislation unconstitutional, the Legal Services of the German Bundestag has found it impossible to ensure the legality of the Data Retention Directive and the European Commission itself still struggles to prove the necessity and proportionality of the Directive, the Austrian Parliament adopted on 28 April 2011 the pending regulations necessary for the implementation of the EU Data Retention Directive in Austria.
In the respective parliamentary session, the Coalition Government primarily planned to celebrate some new ministers following a government reshuffle within the conservative party (ÖVP). However, the debate on the data retention legislation was set on the agenda later in the evening when the live TV coverage had already ended. This plan to hide the issue from the public was evaded by the opposition by raising a so-called objection debate, i.e. a MP asked for the deletion of the topic from the agenda - an issue that has to be discussed first.
This means that interested citizens got the chance to follow the hot debate live on their TV screens: While the opposition again raised concerns about the compatibility with fundamental rights and accused the ruling parties (SPÖ - social democrats and ÖVP - conservatives) of spying on the citizens, the government dug their heels in and refused any compromise. Minister of infrastructure Doris Bures (SPÖ) - in charge of the necessary amendment of the telecoms regulations - argued that she was just executing EU provisions and the implementation was necessary to avoid EU sanctions.
Furthermore, she claimed the implementation of the EU directive would cover the absolute necessary minimum only. This is true as it regards the retention period of the collected data which will be limited to six months.
Unfortunately, this is not true at all as it regards the access to the retained data which is not subject to a judicial decree in all cases. On the contrary, the amendments of the Austrian Security Police Act and the Code of Criminal Procedures foresee a wide range of possibilities for the public prosecution and the Police to access the data pre-emptively e.g. "in case of an general danger". This broad exemptions have been introduced by the minister of interior and the minister of justice - both led by members of the conservative party ÖVP - and after the public consultation for the draft law on the telecom-part has been closed.
Simultaneously, the safeguards foreseen are relatively weak and the remedy provisions are not well established. A fact which was even stated in an expertise from the legal services of the Austrian Chancellery just a few weeks ago.
Despite this, the implementation of the Data Retention in Austria was adopted later the day with the consent of the delegates of the coalition partners SPÖ and ÖVP. The opposition formed by the green party and the two right wing parties FPÖ and BZÖ voted unanimously against the "dishonourable law".
The Austrian Journalists Association was shocked when they realised that, seemingly, no exemptions are foreseen for "sensitive professions" such as journalists, lawyers, hot lines for pastoral or social care, medical care and the-like. Something the government has promised all the time and used for the reassurance of the respective interest groups.
By return, the opposition announced to bring the data retention provisions to the Constitutional Court. Provided three quite diverse proponents from the green and the right wing side find a consensus in this matter, they would form at least one third of the delegates. This is the minimum number that enables MPs to file a constitutional complaint right after the respective law has passed the parliament and yet before the law enters into force on 1 April 2012.
If the opposition cannot find an agreement, the civil society is already raring to go. The Privacy Groups 'Arge Daten', 'AKVorrat' and others have already signaled that they are willing to file a complaint on the very first date possible. Unlike to the members of the parliament, citizens have the possibility to file a complaint against a law only when this law is already in force and in case they are personally affected by the provisions in question.
Data Retention passes the Austrian Parliament - Opposition criticises
infringement of fundamental rights (Parlamentskorrespondenz Nr. 408,
28.04.2011, only in German)
Austrian Telecom Act - TKG 2003 (only in German)
Code of Criminal Procedures 1975 and Austrian Security Police Act
Parliamentary Debate on the implementation of the Data Retention Directive
in Austria (only in German, 28.04.2011)
Expertise from the legal services of the Austrian Chancellery on the
Austrian provisions to implement the EU data retention directive (only in
Austria: Data retention adopted, opposition plans to file complaint
Defending press freedom starts in one's home country - Press release from
the Austrian Journalists Association (only in German, 2.05.2011)
Parliament's decision on data retention not easy to comprehend - Press
release from the Interne Service Providers Austria (only in German, 2.05.2011)
EDRi's Shadow evaluation report on the Data Retention Directive (2006/24/EC) (17.04.2011)
(Contribution by Alice Sedmidubsky - unwatched.org)