Reply to debate on data retention: Investigators have ignored the alternatives

Contrary to what the investigators' debate post suggests, the investigators' proposal means continued general storage, which in key parts is even more extensive than that already rejected by the European Court of Justice. Alternatives that meet law enforcement needs without infringing on human rights have also not been investigated, writes David Mothander IT&Telekomföretagen on DN Debatt in a reply to the government's investigators of data storage.

In December 2016, the European Court of Justice ruled against the Swedish general and undifferentiated data retention on the grounds that it violated human rights. As a result, on February 16, 2017, the government initiated an investigation to propose necessary changes to ensure that Sweden does not violate EU law when Swedish telecom operators are forced to store and disclose data about their customers for law enforcement purposes.

Today, before the investigation was handed over to Minister of Justice Morgan Johansson and published to the public, the investigators presented their conclusions on DN Debatt.

What the investigators present is remarkable. Contrary to what the op-ed suggests, the investigators' proposal means continued general storage, which in central parts is even more extensive than that already rejected by the European Court of Justice.

Equally remarkable is that the investigators, as far as we can see, have ignored the directives they have received, which state that "the investigator should consider different options for change and highlight the pros and cons of these options." In their op-ed, the investigators claim that "The inquiry has examined different forms of data retention. The only reasonable model is one similar to the current one..." and that "There is also no alternative way to access the same information. Some form of data retention must therefore exist."

The last sentence is correct, but it does not mean that general data retention is the only option. On the contrary, when the CJEU struck down the previous law, it pointed to what it considers to be a proportionate solution, namely what is known as targeted retention. Targeted retention is the preventive retention of data relating to a certain specified circumstance that can be linked to the risk of serious crime. There is a very important difference between this and general retention and surveillance, which instead covers all people in society.

The targeted solution, according to the CJEU, meets the reasonable needs of law enforcement authorities, without violating the human rights guaranteed to every EU citizen. The investigator has chosen not to present this option at all.

For members of the IT&telecoms industry, the proposal poses a significant risk that we will once again end up in legal uncertainty, with new obligations imposed on companies that will drive costs and block development resources for a long time to come, while the new retention obligation, given how it went last time, violates EU law and therefore needs to be repealed. This will cost money and hamper industry investment in the digitization of Sweden, but it will also mean that law enforcement authorities will not have the predictable access to data they need for effective law enforcement.

Sweden cannot afford to make the same mistake again and once again implement overly generalized data retention that violates EU law. This would have a strong negative impact on the telecoms industry, law enforcement and ultimately consumers and businesses. It is simply unnecessary and stupid.

We therefore call on the government to do the right thing and instead propose to Parliament a regulation on data retention that is sustainable in the long term and meets the public's need for protection of their privacy in accordance with the requirements of EU law. Dismantling the freedoms that democracy and the rule of law are supposed to guarantee is a poor solution for ensuring the same.

We therefore assume that this perspective will weigh very heavily in the government's factual assessment of the interim report "Data retention and EU law".

David Mothander, Federal Director IT&Telecom Industries