[pp.int.general] illegal use of retained data?

[Reinier Bakels]

> > ANY MEMBER STATE CONSIDERING TO ALLOW ACCESS BY RIGHTS OWNERS
> > ORGANISATIONS?
> Yes, Germany. I know that that must sound strange since you reasoned 
> exactly
> the opposite from the laws. It's really a difficult topic and I believe 
> even
> most of our law experts in germany have different
> opinions about it. Recently a law has been passed in germany that forced
> internet service providers to give data to rights owners in civil 
> lawsuits.

Well, playing devils advocate, in a way it is not illogical to provide such 
data also for civil law suits, especially as (at least Dutch) criminal 
authorities leave infringement handling to civil procedures (which is 
fortunate because then the rights owners pay the cost of prosecution and the 
police is not involved). BUT it ought to be based on the law, and there is 
obviously no basis in § 103b Telekommunikationsgesetz. In The Netherlands 
perhaps such a thing may be hineininterpretiert - but definitely not in the 
German legal culture!

> Well, what data do they want to give the rights owners then? There are a 
> few
> providers (Deutsche Telekom is one of them) which do not collect data
> according to the data retention law. (They won't be forced to do this 
> until
> 2009) Instead they collect the whole data for a week or so "to keep their
> infrastructure safe". And this data of course might be accessed by rights
> owners organizations to sue file sharers.

I found in the Dutch law proposal that there is only an obligation to 
*retain* data (that is collected in course of the regular service process), 
not to *collect* data specifically for legal purposes pursuant from this 
directive. And actually that is what is written in art. 3(1) of the 
Directive:

Obligation to retain data 1. By way of derogation from Articles 5, 6 and 9 
of Directive 2002/58/EC, Member States shall adopt measures to ensure that 
the data specified in Article 5 of this Directive are retained in accordance 
with the provisions thereof, to the extent that those data are generated or 
processed by providers of publicly available electronic communications 
services or of a public communications network within their jurisdiction *** 
in the process of supplying the communications services *** concerned.

§ 113a German TkG also says: (1) Wer öffentlich zugängliche 
Telekommunikationsdienste für Endnutzer erbringt, ist verpflichtet, von ihm 
*** bei der Nutzung seines Dienstes erzeugte oder verarbeitete *** 
Verkehrsdaten ... sechs Monate ... zu speichern. Between asterisks is the 
essence: no obligation to collect data, only data .

I personally have an ADSL connection for which a pay a flat fee per month. 
For my e-mail the same applies (for reasons irrevant at the moment I use a 
separate mail provider). For billing purposes, there is no need to collect 
data. When ADSL was new, there was a maximum amount of bytes that could be 
exchanged free of charge over ADSL, presumably because the providers were 
afraid that some users may use the full capacity to do whatever production 
work, but that limit no longer exists. That would (in the past) have been a 
reason to do some registration, but not per (logical) connection but only 
per physical connection (TCP/IP stack level).

If my analysis is right, Data Retention would only be effective for 
telephone calls. Unless internet providers collect unneeded information for 
"your never know" purposes (and it may be illegal to *collect* data without 
a proper need, even with the DR directive!)

Now I am not saying Data Retention is no problem at all, after all, but 
there is a strange paradox. It seems he succes of "DR" depends on illegal 
interpretation? It is weird.
>
> -- 
> Bitte beachte, dass dem Gesetz zur Vorratsdatenspeicherung zufolge
> jeder elektronische Kontakt mit mir sechs Monate lang gespeichert wird.
> Please note that according to the German law on data retention,
> information on every electronic information exchange with me is retained
> for a period of six months.
>

So this may actually not be true??????

reinier