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

[Reinier Bakels]

Sorry, there is no reason to say that I did not properly listen to your 
previous note. Let's be nice to each other.
I guess the confusion is that there are two distinct types of 
telecommunication tapping:
1. On a routine basis, without any specific prior reason: that is data 
retention, and it is limited to traffic data
2. Temporarily, ordered by a public prosecutor and/or a judge: that may 
include traffic contents. This is the type of investigation under § 100 a/b 
StPO, and similarly art. 126 aa-zz of the Dutch Wetboek van Strafvordering. 
The latter provisions were adopted in 2000 after a parlementary Commission 
("Van Traa") had decided that a proper regulation also of exceptional 
prosecution authorities was needed ("Wet BOB"), after in the 1990s a drug 
prosecution project ended in a major political scandal (IRT affaire).
This act was exceptional insofar that it distinguished "preparatory acts", 
which was a fundamental deviation from the established principle that only 
the prosecution of specific suspects is legitimate. But still, the measures 
of this act were only justified in the that such "preparatory acts" could 
reasonably be expected, *not* as an ever lasting day to day routine. Which 
is basically what Data Retention is.

In sum, I am still not convinced that the DR directive creates any 
obligation to record data, only to retain data that is already recorded for 
other purposes, such as billing. Actually in the debate in the Dutch 
parliament last Wednesday, the minister underlined several times that Dr is 
about data that is recorded anyway. Well, the minister is a politician, but 
also a law professor.

Not observing Data Retention obligations is a crime by itself. Criminal law 
always requires very strict interpretation. If this principle is not 
observed, it is a clear case for appeal/revision or even the constitutional 
court.

Perhaps the idea is frustrating that the DR directive is not as bad as it 
seemed at first sight. But, firstly, unlike political debates, legal debates 
depend on precision, and secondly, perhaps there is indeed a worrying 
situation, but that may be dependent on national legislation only (like § 
100a StPO for DE and art. 126 hh Sv for NL).

Groeten, Grüße, Regards, Cordialement, Hälsningar, Ciao, Saygilar, 
Üdvözlettel, Pozdrowienia, Kumusta, Adios, Oan't sjen, Ave, Doei, Yassou, 
Yoroshiku
>>> REINIER B. BAKELS PhD
private: Johan Willem Frisostraat 149, 2713 CC Zoetermeer, The Netherlands 
telephone: +31 79 316 3126, GSM ("Handy") +31 6 4988 6490,  fax +31 79 316 
7221
----- Original Message ----- 
From: "Ricardo Cristof Remmert-Fontes" <ricardo.cristof at remmert-fontes.de>
To: "Pirate Parties International -- General Talk" 
<pp.international.general at lists.pirateweb.net>
Cc: "Mensen die willen bouwen aan Vrijschrift" <kern at vrijschrift.org>; 
<cafe at ffii.org>
Sent: Saturday, May 17, 2008 10:31 PM
Subject: Re: [pp.int.general] illegal use of retained data?


> Hi Reinier,
>
> and again...
>
>
> Reinier Bakels schrieb:
>
>> 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!
>
> No, this is not the complete truth, as I tried to explain in my other
> answer: § 100g StPO alsoallows access in cases of "crimescommitted by
> telecommunications".
>
> The german adoption is not only written into TKG
> (Telekommunikationsgesetz), but also into StPO (Strafprozessordnung) and
> some other legal bases.
>
> Large parts of the terms for wiretapping etc. (TKUe) have also been
> rewritten with it.
>
>>
>>> 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.
>
> As I also wrote in my other mails, this is not the whole truth.
>
> In germany, the storage of internet traffic data and email data ist
> postponed until 1/1/2009.
>
> This is, because the stakeholders group (Recital 14 working group) of
> the european commission and thus the german equivalent have not yet
> finished talking about technical standards for how and which data
> exactly to store (VOIP, IM, Ports? and others).
>
> The technical guidelines of our Bundesnetzagentur and the ETSI (European
> Telecommunication Standardization Institution) are not ready, yet.
>
>>
>> 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.
>> 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!)
>
> No. I explained the specific points regarding the german adoption in my
> former mail.
>
> The german adoptions exceeds the directive in many ways:
>
> 1. more date are stored, than before used for billing. This is
> specifically true for flatrates, but also for incoming connections (!) 
> etc.
>
> 2.Anonymizers and other services not mentioned by the directive will
> have to store data.
>
> And you can bet, that the german adoption is one of the most
>
>>
>> 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.
>
> No. Simply, some people didn't know, what it means; other knew and
> wanted the directive as broad, as possible. :-D
>
> Stupid politicians, clever intelligence services and recording industry
> lobbyists.
>
> And you, as most of techies, oversee the most important problem
> regarding DR: it is not about filesharing and it is,of course, even
> possible to circumvent it for pros, but: data retention make human
> networks and relationships transparent as never before.
>
> That's why the intelligence wants it.
>
>>> -- 
>>> 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??????
>
> Yes and no. As also written before, storage of internet and
> email-connections are postponed until 1/1/2009.
> Telephone, mobile phone, fax and SMS-data are stored.
>
> best regards,
> Ricardo Cristof
>
> -- 
> Arbeitskreis Vorratsdatenspeicherung
> c/o Humanistische Union e.V.
> Haus der Demokratie und Menschenrechte
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>
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> E-Mail: rcrf at vorratsdatenspeicherung.de
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>
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