Legislation Draft for the Implementation of Directive 2006/24/EC
In February 2008, the Austrian Federal Ministry of Transport, Innovation and Technology had already assigned the Ludwig Boltzmann Institute of Fundamental an Human Rights (LBI-GMR) to elaborate a comparative analytical study on the status of application of the Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (“Data Retention Directive”). The Directive forces the Member States to ensure that traffic data, location and subscriber data are retained for periods of not less than 6 months and not more than 2 years. These data have to be stored without a certain suspicion for the abstract purpose of investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. Therewith the Directive is breaking with the principle that an interfer-ence with the right to privacy as protected by Article 8 ECHR has to be proportionate in every single case.
In April 2009, the Commission decided to bring an action against Austria because of non-transposition of the Directive. Transposition into national law had to be done until September 15th 2007, respectively until March 15th 2009 with regard to internet services.
In spring 2009, the LBI-GMR was invited by the Federal Ministry of Transport, Innovation and Technology to work out a draft act transposing the Data Retention Directive 2006/24/EC into national law. The work was done by experts of the institute together with a group of independent experts in the relevant fields of law and technology, including academics as well as practi-tioners. The assignment was the chance to find a version of transposition which provides as much safety elements as possible and interferes least with fundamental rights of users. It included a scientific analyse on the conformity of the directive itself as well as standards of European and international law.
The LBI-GMR organised continuous round table discussions with concerned service providers, non-profit organisations, employee and consumer representations, as well as representatives of concerned ministries and other public authorities. In addition, meetings in small technical groups were held in order to assure clarity of the norm and to take into consideration all technical possibilities, especially concerning data security matters. In September 2009 the LBI-GMR delivered the draft act on the amendment to the Telecommunications Act 2003. Until January 2010 it was announced for an official public examination.
Persons involved: Stefanie Dörnhöfer, Christian Schmaus, Hannes Tretter (Projektleitung) , Christof Tschohl
Contact persons: Michael Lysander Fremuth
Lead Organisation: Ludwig Boltzmann Institute of Fundamental an Human Rights (LBI-GMR)
Project start: 04/2009
Project end: 09/2009
Project completed: Yes
Funded by: Federal Ministry of Transport, Innovation and Technology
Team: Information Society