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25th Jul 2021

Police largely exempt from data protection directive

  • Law enforcement is entitled to "flexibility" in the data protection rules (Photo: SWIFT)

The European Commission's draft law on personal data protection has too many loopholes, say critics, with special privileges for police a major concern.

"You need some kind of flexibility because police and security agencies do not function in the same way in all our countries yet," EU justice commissioner Viviane Reding told press in Brussels on Monday (23 April)

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The commissioner in January proposed an overhaul of the 1995 data protection directive, with the new proposals widely heralded as a vast improvement.

But while the new law strengthens data protection of individuals on commercial matters, a compromise with European interior ministers essentially excludes law enforcement investigations. Unless there is an unspecified but compelling reason not to, or if an investigation is ongoing, police do not have to inform individuals their data are being probed.

Such exemptions and compromises have raised concerns that the directive fails to adequately address data protection in the area of police justice.

The Article 29 Data Protection Working Party, an independent EU advisory body on data protection and privacy, noted in March that the new law does not include accountability provisions for police and judicial co-operation in criminal matters.

The directive makes a distinction on quality and accuracy of the data processed by the law enforcement authorities. But it does not include data protection principles such as limiting retention periods, transparency, and accuracy of personal data, the Article 29 working group says.

The commission's regulation - different from the directive in scope and application - also allows for sensitive data to be processed in matters concerning "the public interest." Another article in the regulation provides for the possibility of restrictions on data protection principles and rights.

"The data protection directive is a step in the right direction but there are many, many loopholes and broad exemptions," Katarzyna Szymielewicz, director of the Polish-based NGO Panoptykon Foundation, told EUobserver.

The NGO, which specialises in digital rights, noted in April that Polish authorities requested users' traffic data retained by telecommunications and ISPs over 1.85 million times last year - up by more than half since 2010.

Polish law allows the authorities to use the retained data to prevent crime and chase petty criminals, says Szymielewicz. The Polish police and state security services can access the data without independent oversight. They also do not have to inform individuals they investigate.

The Polish laws, adopted in 2009, follow a controversial 2006 EU data retention directive. The directive obliges member states to adopt legislation requiring all ISPs and telecoms operating in Europe to retain subscriber’s incoming and outgoing phone numbers, IP addresses, location data, and other traffic for a period of six months to two years.

However, the data retention directive should only apply to cases involving the investigation, detection and prosecution of serious crime - not petty crime.

Szymielewicz says the commission's initial drafts of the data protection directive would have made it more difficult for law enforcement to access such information.

"The first draft of the data protection directive required authorities to request personal data by writing but unfortunately, in the second draft this was dropped," she said.

Moreover, according to statistics provided by member states to the commission, less than 1 percent of all requests for retained data concerned data held in another member state.

Law enforcement authorities prefer to request data from domestic operators rather than launching mutual legal assistance procedures.

Such procedures may be time consuming without any guarantee that access to data will be granted, says the commission in their implementation report of the data retention directive.

The terms and conditions outlined by British phone firm O2, for instance, says they are entitled to share customer information with any relevant public authority or law enforcement agency.

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