Germans stick to their guns on data retention

As we've noted before, the Germans take privacy and civil liberties seriously, and have refused to implement the EU's Data Retention Directive (the first part of the Directive was meant to have been implemented in 2007 the second part in 2009). There's a lot of history here. Two years ago, the German Constitutional Court ruled the implementing law of the Directive unconstitutional, which in turn triggered the current stalemate.

As the Germans continue to drag their feet, the European Commission has now proposed that the ECJ impose a daily penalty of €315,037 on Germany until it implements the Directive. However, Süddeutsche reports that the liberal FDP Justice Minister Sabine Leutheusser-Schnarrenberger is sticking to her guns and is still refusing to implement the law - something which is increasingly straining relations within the German ruling coalition, with CDU/CSU MPs, and CSU Interior Minister Hans-Pieter Friedrich in particular, less keen to make a stand on the issue than the FDP.

This is becoming a very interesting test case for a potentially new-found German assertiveness in Europe, though it's not alone on this on this one. Sweden, Austria and Romania have gone into this Directive kicking and screaming, but it's definitely Germany that is offering the most resistance at the moment. More widely, of course, this is an interesting example of an EU member state unilaterally refusing to accept an EU law what it goes against the country's fundamental political and constitutional settlement.

A useful lesson as to why the EU shouldn't decide who has access to our phone and internet records

So, the Coalition seems to have backed down on imposing new powers over internet surveillance, opting for a 'consultation' on draft plans, rather than pushing for a full Bill.

Although the exact proposals remain unclear, the Coalition seemed to be gearing up to extend the current rules on the retention of and access to communications data (the destination of phone calls, emails and websites visited, but not their content, is already recorded and stored for 12 months by UK law).

So what's the EU angle, because invariably there is one?

The requirement for service providers to retain this data are laid down in the EU's 2006 Data Retention Directive. We looked at the Directive and various other surveillance-type EU proposals in this report in 2009. But it should be noted that the previous UK Government was a co-sponsor of the initial EU proposal when it was first tabled in 2004 and, following the 2005 London bombings, was a strong supporter of the rules.

The Coalition's new proposals, which it seems likely to continue pushing after this storm has died down, would use additional UK legislation to extend the data collected to cover contacts made via social networking, and potentially even online video games. But, arguably the most controversial proposal is to allow intelligence officers to access emails, calls and texts as they happen in 'real time', without a warrant, rather than retrospectively.

This all goes beyond the current EU Data Retention Directive, which is basically limited to the retention of data on landline calls, mobile calls, emails and web history. The current Directive also leaves it up to member states to decide how and when law enforcement authorities can gain access to this data. So don't blame the EU in other words.

But this is not necessarily the end of the story. The European Commission plans to make a proposal for an amended Data Retention Directive this year.

And crucially, the Commission's 2011 evaluation of the current Directive stated that:

The Commission will assess the need for, and options for achieving, a greater degree of harmonisation with respect to the authorities having and the procedure for obtaining access to retained data. Options might include more clearly defined lists of competent authorities, independent and/or judicial oversight of requests for data and a minimum standard of procedures for operators to allow access to competent authorities.

In other words, law enforcement authorities' access to retained communications data could be something that will be regulated by the EU in future, if the Commission opts for this approach and gets support from member states and MEPs.

What this would mean for the UK in practice is not entirely clear because the UK is often rather more keen on state snooping than other EU states (e.g. Germany, which doesn't implement the original directive after its Constitutional Court struck it down). It is therefore unlikely that the EU minimum standard for law enforcement access to data would go beyond current UK practice or what the Coalition is trying to do in future.

However, this week's media storm over how much access the state has to our personal data shows that the principle of allowing the EU to determine which authorities have access to our personal data, and when, could create huge political issues in the future. How would politicians like to tell their voters that in fact it is the EU that decides on who and how police forces can access their data?

One thing that this week has surely taught us is that this is something that should be decided nationally, where if the one government decides to make authoritarian assaults on civil liberties they can at least be overturned by future governments or rethought due to public pressure. Not so once an EU directive is in place and it requires the re-opening and successful conclusion of negotiations between 27 member states and 736 MEPs.

It will interesting to see, following this week's storm in Britain, what the Commission will propose.

Have the Germans been good Europeans this week?

Earlier this week, German Foreign Minister Guido Westerwelle held a meeting with a number of his European counterparts dedicated to 'conceptualising' the political composition of Europe after the crisis has passed and provide some though leadership.

Ahead of the meeting, the German Foreign Ministry released a Communication entitled “Explaining Europe, Discussing Europe”, which put Germany’s EU policy into ideological context, including statements like:

“Our country is prospering in the united Europe. The fact that we have closer ties with our European neighbours today than ever before is a tremendous enrichment for us... Europe is the definitive answer to 'the German question'. That is why we bear a particular responsibility for ensuring that European integration is carried forward with our neighbours in France, Poland and the other member states."

To what extent Westerwelle's initiative enjoyed support from across the German Coalition government, including the Chancellery, as well as the Bundestag and the German public as a whole, is an open question.

However, as we have pointed out on numerous occasions, the above rhetoric is a reflection of Germany’s ideological commitment to European co-operation in the post-war era. However, modern Germany also has a number of other important ideological foundations such as a commitment to low inflation and restrained monetary policy, a strong system of political checks and balances via the Basic Law, and a strong tradition of individual rights and liberties. The realities of EU integration often clash with these other key principles, as a number of stories from Germany this week have served to illustrate. We will briefly cover these in turn:

1. The size of the Eurozone bailouts

While opposition to the bailouts is hardly a new development in Germany, we learnt this week that the German government looks to have finally dropped its opposition to running the eurozone’s two bailout funds, the temporary EFSF and the permanent replacement ESM in parallel, or possibly even combining them. The government decided its position had led to Germany being isolated within Europe, however as Handelsblatt reports, many MPs within the Coalition are unhappy and could rebel on the issue.

2. The EU’s Data Retention Directive

This has always been the subject of a long-running dispute between the EU and Germany after Germany’s Constitutional Court (often an inconvenient truth for EU laws) ruled that the Directive was incompatible with the Basic Law. Consequently, the government repealed the legislation but has not to date put forward a replacement, meaning it is in breach of EU Law. Germany has failed to heed the Commission’s reprimand back in October, and this week EU Home Affairs Commissioner Cecilia Malmstrom (whose native Sweden has so far also failed to transpose the Directive into national law) insisted that Germany issues a commitment to doing so within the next four weeks. The Directive is very unpopular in Germany, as yesterday’s Süddeutsche comment cartoon shows:



3. The ‘VW’ law

Another long-standing dispute between the EU and Germany concerns the so-called VW law, under which the state government of Lower Saxony controls a blocking minority of 20% of Volkswagen shares. The EU has long contested that the law illegally restricts the flow of capital in Europe, but despite being amended in 2008 following an ECJ ruling, the Commission announced this week that it would again seek to challenge it prompting German Economy Minister Philipp Rösler to say that the government stands by the law and intends to “aggressively defend” it.

4. Revision of the Posted Workers’ Directive

Another story in the German press this week argued that the Commission’s revision of the Posted Workers’ Directive could make it far harder for member states to crack down on black market labour, clearly a big issue in Germany’s large construction sector. An editorial in Die Welt argued:

“Brussels should not regulate every aspect of life to the smallest detail…member states constantly get the feeling that the democratically barely legitimised EU commission interferes in things which are none of its business, and, what is worse, their interventions only make things worse.”

As the four examples illustrate, when rhetoric clashes with realities of EU integration, Germans are often very keen to defend their own way of doing things - just like all other member states...

By-passing Parliament

The Guardian's Comment is Free site has an important piece about the fact that the EU's intrusive Data Retention Directive - which compels all internet service providers to retain information from all emails and website visits - has been brought into force today... without debate in Parliament.