Data retention

Citizens under general suspicion

Data retention and unfounded mass surveillance were challenges that led to the creation of the AKVorrat. After years of confrontation, we made the breakthrough: the cancellation of EU Directive 2006/24 / EC by the European Court of Justice in April 2014 was an overwhelming victory for civil rights in Austria and Europe.

Data retention means the unfounded and general collection and storage of personal data. Without specific suspicion of punishable acts, connection data obtained in telecommunication processes are stored as a precautionary measure. They contain exact information on who communicated when, where, how long, and with whom. Movement and personality profiles created on this basis often have more significance for people's lives than the actual content of their communication.
 
The massive violations of fundamental rights associated with general data retention pose a threat to individual freedom. They are shaking the foundations of Western-style democracies, which are at risk of drifting from the rule of law to preventive states and eventually totalitarian surveillance states. 

Terror as justification for mass surveillance

In the days following the terrorist attacks in New York on September 11, 2001, European foreign ministers proclaimed the full solidarity of the European Union with the United States. The European Council of Justice and Home Affairs called on the EU Commission to put forward proposals to monitor electronic communications. Law enforcement agencies should have access to data from telephone, mobile, e-mail, and other telecommunications connections. The first Draft Data Retention Act of April 2004, submitted by France, Ireland, Sweden, and the United Kingdom, was rejected by the European Parliament in late May 2005, partly because Article 8 of the European Convention on Human Rights was threatened. However, the terrorist attacks in Madrid (March 11th 2004) and London (July 7th 2005) intensified political pressure. Excessive safety thinking spread and and citizens' fear and terrorism were exploited to justify the unfounded public mass surveillance of everyone living in the EU. 

Fastest legislative procedure in EU history

On September 21st, 2005, the European Commission made a proposal for data retention. It is based on the harmonization of the legislation of each member state in the form of a directive. Under pressure from the UK Home Secretary and after informal collusion between the Council of Ministers, Christian Democrats (EPP) and Social Democrats (PSE), it was reluctantly accepted in plenary on December 14th 2005 in the European Parliament. 
 
The approach to this decision was worrying: despite its appalling impact on civil rights, the Directive was completed in just three months, the shortest legislative procedure to date since the EU's birth. 

The EU Data Retention Directive (2006/24 / EC)

On March 15, 2006, the EU Data Retention Directive (2006/24 / EC) came into effect. It required EU member states to incorporate the storage of traffic and location data as well as data to establish the identity of the respective participants into national law. Providers were required to retain the connection details of almost all communications for a minimum of six months and a maximum of two years for the purpose of investigating, detecting, and prosecuting serious crime.
The directive overruled the hitherto valid, fundamental prohibition on the storage of traffic and location data by persons other than the user himself or without his consent. 

The major points of criticism

Threatened fundamental rights: The EU directive undermined the fundamental right to live a private life uninterfered by state control. Freedom of expression and information as well as editorial secrecy are also weakened and the fundamental right to data protection is massively curtailed. A paradigm shift is taking place: away from the presumption of innocence, towards premature suspicion. Professional secrets are undermined and and consequently there is a loss of trust as contacts with doctors, lawyers, psychologists and journalists remain traceable.
 
Alleged prevention: The preventive use of data for law enforcement is clearly refuted in scientific studies (Max Planck Institute, Freiburg, TU Darmstadt). To date, officials have not been able to prove that such a general suspicion actually increases security. 
 
Creeping misappropriation of laws: Soon after the introduction of data retention in Austria, the content industry, above all the music and film industry, declared their desires: Without any connection to the originally intended fight against terrorism and organized crime, they demanded the use of data for the prosecution of copyright infringement. Needless to say, the domestic military intelligence services did not want to be offside and demanded access. 
 
Technical evasion: Terrorists and organized criminals can evade the surveillance network through expertise - an effort that the unsuspecting, carefree citizen usually does not undertake.
 
Data protection: One hopes in vain for data security measures on the part of the state. In those years when data retention was in force in Austria (from 1 April 2012 to 27 June 2014), the competent data protection authority did not once examine the security of the sensitive data stored by the providers.
 
Costs: The preparation and execution of the general data retention incurs substantial costs. Every year the citizens have to pay millions in taxes and tariffs for their own surveillance.

Data retention in Austria and the protest against it

Austria also had to transpose the EU Directive into national laws and regulations, but at the beginning was hesitant.
 
In the course of the public discourse, a massive civil resistance formed. In December 2009, the "Arbeitskreis Vorratsdaten Österreich" was founded in the Vienna Audimax - occupied as a result of the "university burned" student protests. As the name AKVorrat suggests, our goal was to educate and abolish data retention in Austria and other EU countries.
 
In the spring of the same year, the Ludwig Boltzmann Institute for Human Rights (BIM) was commissioned by the Federal Ministry of Transport, Innovation and Technology (BMVIT) to draft a fundamental amendment to the Telecommunications Act 2003, the Security Police Act and the Code of Criminal Procedure. The accompanying scientific analysis submitted by BIM in September 2009 showed that it is basically not possible to implement the EU Directive in compliance with fundamental rights. To repair them, you have to abolish them completely, so the recommendation.
 
Christof Tschohl, founding member of the AKVorrat, had worked on this draft in the BIM. It was he who, together with Ewald Scheucher, later formulated the constitutional complaint against data retention, which four and a half years later would lead to the fall of the entire European data retention Directive before the ECJ. Soon after, its implementation in Austria was annulled.
 
On October 17, 2011 the AKVorrat started its citizen initiative "Stop the Data Retention!"

The two demands of our citizens' initiative were:

  1. Abolition of data retention: The Austrian government should actively support the abolition of EU Directive 2006/24 / EC at EU level (in the Council of Ministers).
  2. Evaluation of anti-terrorism laws: all surveillance laws should be reviewed.
The to this date largest citizen's initiative in Austria was created: By April 2012, 106,067 Austrians had spoken out their concerns in writing or online via the platform www.zeichnemit.at. 

In spite of this enormous reaction of civil society, the National Council decided to implement the EU Directive (2006/24 / EC) into national law in the spring of 2011, under pressure from a threat of punishment from the European Commission to initiate infringement proceedings. On 1 April 2012, the Austrian Data Retention Act finally came into force.
 
Since the term "serious crime" had not been defined in the EU directive, it could be interpreted arbitrarily by the individual member states. In Austria, for example, all offenses punishable by over one year of criminal punishment were classified as "serious offenses". Thus, the access was also detached from the actual purpose - fight against terrorism and international, serious crime - possible. The following year, domestic investigators made use of the data retention almost daily, but mainly in connection with minor offenses such as theft and stalking.
 
The Austrian implementation was rather cautious in European comparison. But this could not compensate for the fundamental rights violations and refute the criticism of the AKVorrat. In order to bring down the Austrian implementation of the EU directive, we had to go to the highest courts. This was the last chance to uphold fundamental rights. It was only with the entry into force of data retention that it became legally possible to file a constitutional complaint against it. The day before the VDS came into force in Austria, there were nationwide protests under the motto "farewell privacy", in which demonstrators with coffins symbolically buried their privacy.
 
On this occasion, the AKVorrat collected the first signed forms for the constitutional complaint against the data retention. The campaign was carried out in collaboration with Albert Steinhauser, justice spokesman of the Green Party and member of the Austrian parliament.  
It received widespread publicity in the civil society: You could also register as a co-plaintiff on the internet at verfassungsklage.at. Finally, 11,139 individual complaints came together. Many folders filled with complaints were pushed in a wheelbarrow to the Austrian Constitutional Court (VfGH) and filed there on June 15, 2012.

The Historical Judgment and the case of the EU Directive

In mid-December 2012, the President of the Constitutional Court Gerhart Holzinger said: "We have doubts that the EU Data Retention Directive is really compatible with the rights guaranteed by the European Charta of Fundamental Rights". Thus, the Austrian Supreme Court decided to refer those questions to the European Court of Justice in Luxembourg in the context of a reference for a preliminary ruling.
 
On April 8, 2014, it invalidated the Data Retention Directive in its current form: Data retention infringes fundamental rights and in particular violates respect for private and family life and the protection of personal data. In this historic judgment, for the first time, an EU Directive was repealed entirely and not only selected parts. A sensational victory for civil rights and civil society!
 
In the following public hearing at the Constitutional Court on June 12, 2014, the Austrian Federal Government was unable to provide any new information about significant added value of data retention for prosecution or crime prevention. On June 27, 2014, the Constitutional Court finally suspended the general data retention in Austria. Thus, the first EU member state had also abolished the national implementation of the Directive in response to the ECJ ruling.
 
The second request of the citizens' initiative Zeichnemit.at - the evaluation of the existing surveillance laws - has not been fulfilled by the Austrian government. But the AKVorrat has not given up there and launched the project HEAT, the catalogue of actions for the evaluation of anti-terror laws. The manual was introduced to the public in version 1.1 on September 11, 2016, exactly 15 years after the terrorist attacks in New York.
 
In these 15 years, we witnessed a gradual expansion of surveillance measures affecting every aspect of our daily lives, undermining and threatening our fundamental and civil rights. HEAT is understood as a handbook to the legislator and as a toolkit, which should help to establish a fact-based security policy and to dismantle the existing monitoring measures or to examine newly proposed measures for their compatibility with fundamental rights.