As part of our response to the High-Level Group on Access to Data for Effective Law Enforcement (HLG “Going Dark”), and following our reaction to their 42 recommendations, we raise our concerns about the HLG’s final report, together with a broad coalition of civil society groups, industry and professional associations,
As a matter of fact, the group recently presented recommendations that could pose a substantial threat to digital security and privacy for the EU and its citizens.
An EU security policy fit for the digital age must address the challenges we face today. Secure communications and legal certainty are imperative for citizens and law enforcement alike. In the light of potential threats by criminals, foreign state-sponsored agencies and even some authoritarian actors within the EU, people expect the institutions to prioritise policies that protect their IT-security and fundamental rights. That is why we recommend:
Support a safe, trustworthy and diversified digital ecosystem. Citizens need technology that empowers them instead of putting them at risk.
Ensure the security and confidentiality of digital spaces because the possibility for people to exercise their fundamental rights depend on it.
Uphold the right to privacy and inviolability of protected information. This is required by the Charter of Fundamental Rights and case law of the Court of Justice of the EU and the European Court of Human Rights.
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The debate surrounding Belgium’s data retention legislation is far from over, despite recent decisions by the Constitutional Court. While some elements of the law have been upheld, the future of this legislation now hinges on the rulings of the European Court of Justice (ECJ) regarding the remaining contested sections. ISPA Belgium is closely following these developments as they have a direct impact on our members and the broader internet ecosystem in Belgium.
A long legal journey
Belgium’s data retention law, which seeks to comply with a European directive aimed at retaining mobile phone data, has faced significant legal hurdles over the years. In 2015, the Belgian Constitutional Court annulled the original legislation, deeming it too vague after a legal challenge by the Human Rights League, among others. A second attempt in 2021 was also struck down by the Court.
Now, the latest ruling by the Constitutional Court on the 2022 version of the data retention law shows some movement in the right direction. Certain key aspects were approved this time, including the concept of targeted data retention within specific geographical zones, also known as differentiated data retention. This provision allows for data retention in zones where there is heightened risk of serious crime or threats to public safety, a change from earlier laws that treated the entire country as a single entity.
Concerns remain
It is true that some legal guidelines have been established, providing much-needed reassurance for the ISP sector. However, with some aspects of the law still lacking clarity, unresolved issues pose technical challenges and create legal uncertainty for the internet ecosystem.
As a matter of fact, the future of Belgium’s data retention framework is still undecided. The Constitutional Court has referred several questions to the ECJ for clarification, particularly around how the EU Charter of Fundamental Rights should be interpreted in this context.
Striking the balance
A major area of concern for Belgian ISPs remains the issue of retaining geolocation data by mobile network operators. While the need for balance between ensuring public safety and upholding fundamental rights is recognised, the outcome of the ECJ rulings will play a decisive role in shaping how this balance is achieved, also on this aspect.
Conclusion
The legal landscape for data retention in Belgium continues to evolve, with both progress and uncertainties on the horizon. The focus of ISPA Belgium is to remain engaged in these discussions, and to ensure that the rights of citizens are respected while addressing the technical and legal challenges that our members face. As we await further developments from the ECJ, our commitment to advocating for balanced and effective policies remains steadfast.
It is crucial that the need to combat crime does not come at the cost of citizens’ fundamental right to privacy. ISPA remains committed to advocating for balanced, well-defined legislation that safeguards both public security and privacy.
ISPA Belgium
EuroISPA Council Member
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Data retention frameworks refer to the regulation of what data should be stored or archived, where that should happen, and for exactly how long. The obligation of data storage stems from the possibility of law enforcement authorities to request such data to Electronics Communications Services Providers at any time.
In light of the current discussions within the High-Level Group on access to data for effective law enforcement, EuroISPA has published this Position Paper on Data Retention. This paper is a testament to EuroISPA’s collective dedication to identifying the practical, operational and economic consequences and challenges of data retention at both the national and cross-border level.
Allowing law enforcement authorities to prevent and prosecute serious crimes needs while safeguarding the fundamental rights of users and electronic communications services providers is not an easy task, as shown by several rulings of the Court of Justice of the EU. EuroISPA has put together a list of imperative requirements to provide guidance on how to achieve the right balance between the interests and obligations of all parties involved.
EuroISPA, a pan-European association which represents over 3,300 Internet Services Providers (ISPs), works to advocate for the needs both of the wider industry and of users. This position paper is one example of how the association’s members work together to draft recommendations for EU policy makers that can be implemented by the industry in order to tackle the issue at hand.
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