Change in Dataretentionbill not in line with jurisprudence EHJ

Government totlally ignores judgment of highest Court

Lawyer Raf Jespers, who was involved in the proceedings against the data retention law, was interviewed by DeStandaard on June 28 about the government’s plans to change the data retention law. The article can be found via this link:

https://www.standaard.be/cnt/dmf20210628_97719015

The government wants to oblige not only telecom providers, but also services such as Whatsapp, Telegram or Facebook Messenger to store their user data and make it available to the police, government and courts. The changes proposed by the government also introduce criteria for where data can be kept, but these are so broad that metadata must be kept across the entire territory.

The highest courts held that the obligation to retain communications data should be the exception, not the rule. With this bill, the government is completely ignoring their judgment. We will not sit on the sidelines waiting for what Parliament will ultimately approve. A procedure takes years. The previous version of the law dates from 2016 and was only quashed this year. Nobody benefits from that. Not only the privacy advocates, but all Democrats must now have the debate to show the population what is hanging over their heads. I have the bill here before me and I am very concerned. We urgently need to have the democratic debate about what kind of society we want to be. Do we want to sacrifice the privacy of all citizens in order to better target criminals? Or do we want to limit that so that we don’t become a surveillance state? The European Convention on Human Rights states that – infringements of the right to private life can only occur if they are necessary in a democratic society. The highest courts have said that is not the case with general data retention.”

“The judiciary already has a lot of resources at its disposal. It can still request the data that the telecom companies keep for their billing. Camera images can also be used to check who is in a particular place at a particular time. The researchers are not at all empty-handed. Where is the scientific research showing that data retention helps so much? It doesn’t exist.’ The bill also wants to restrict inaccessible chat apps and require a so-called backdoor, which gives the court access to encrypted data. “That is a very serious and dangerous evolution. Apps such as Whatsapp and especially Signal encrypt their communication traffic. Is it good that the state can lift that secrecy? Do we want to give the government the opportunity to claim those keys? That is even a different issue from data retention and requires a separate debate. This is a big discussion internationally. In many countries there are attempts to impose this on technology companies. What one should certainly not do is sneak the principle into our regulations.’