The Belgian Parliament is set to vote in committee this Thursday 09/06/2022 on the new data retention proposal which includes an allegedly geographically “targeted” data retention scheme. With an interactive online map, Patrick Breyer MEP (Greens/EFA, Pirates) demonstrates that according to publicly-available data, this “targeted” data retention scheme will in truth cover the entire national territory and the whole population.
The European Court of Justice (ECJ) ruled that general and indiscriminate retention of information on every person’s calls and movements violates the fundamental right to respect for privacy. In May, Patrick Breyer MEP and the Belgian NGO Ligue des droits humains (LDH) submitted opinions on the Belgian draft law which claims to implement the ECJ rulings.
MEP Dr. Patrick Breyer (Pirate Party, Group Greens/European Free Alliance) warns:
“The Belgian bill is a dangerous precedent for a new generation of data retention laws. Data-addicted surveillance authorities are trying to circumvent the top court rulings on the illegality of blanket communications and location data collection. At first glance, the surveillance plans appear limited, but those who examine them closely realize that the intention of the law is to maintain full mass surveillance, contrary to the rulings of the EU Court of Justice.”
Opaque legislation – full surveillance
The Belgian MPs requested numerous times the government to disclose the percentage of the population or of the territory that would be covered by its proposal. Every time, the Justice Minister (Vincent van Quickenborne) claimed he does not know the figures; he invites the MPs to vote the law regardless, and wait a year to find out in the yearly transparency report how his legislative proposal actually impacts the Belgian population. It turns out that these claims to ignorance are false, because the thresholds chosen by the government to ‘activate’ data retention in the ‘targeted’ zones are set to make sure that the whole territory is covered. Indeed, MEP Breyer commissioned a researcher to do the mapping exercise himself, using public data about crime statistics. With the publication of this map, citizens and MPs can finally get a first rough impression of the impact of the law and realise that indeed, this ‘targeted’ form of data retention is not targeted at all. It is yet another form of blanket surveillance in disguise, which will without doubt be struck by the Courts in Belgium for the third time. An informed debate can perhaps finally be had in the Parliament, where the relevant committee is set this Thursday to vote on the proposal as a whole, in first reading.
Plans violate citizens’ rights
At the same time the European Commission is pitching ideas to Member States on how data retention can still be carried out massively while not crossing the red lines provided by the ECJ in its numerous rulings. One of such ideas is to use the ‘targeted’ approach to cover as much of the population as possible, which is precisely what the Belgian government tries to implement – hence the intervention of MEP, in the face of a Member State setting an example. In a legal opinion published in April, former ECJ judge Prof. Dr. iur. Vilenas Vadapalas states that targeting all areas with above-average crime rates would not be compatible with the values and case-law available. He underlines that there must be a “high” (not just above-average) incidence of serious crime in an area to justify the use of data retention.
According to our calculations, the Belgian average crime rate is of 11 serious offences per 1,000 inhabitants per three years. Compared to the national average, the proposed thresholds (3, 5 and 7) enabling data retention are thus far below the national average, and the proposal would hence even covers low-crime areas, in contradiction with the former ECJ judge’s opinion.
“Quick Freeze” approach a viable solution
However, regardless of what the threshold should be to satisfy the red lines provided by the ECJ, MEP Breyer is of the opinion that this approach itself is fundamentally misguided. Going down the rabbit hole of determining the ‘right’ threshold (or the ‘right’ size of areas to be monitored) also means affirming that it is okay for the government to carry out mass surveillance over its mostly innocent citizens. Instead, MEP Breyer urges the European legislators to find other means, more proportionate and less impacting of democracy and the fundamental rights of the people.
Such a proportionate solution would be the so-called “quick freeze” approach, as in discussion in Germany, meaning that relevant data is only preserved as soon as there is sufficient reason to do so. The German coalition agreement reads: “In view of the current legal uncertainty, the upcoming ruling of the European Court of Justice and the resulting security policy challenges, we will develop the regulations on data retention in such a way that data can be stored in a legally secure manner on an ad hoc basis and by judicial order.” The EU is waiting for the European Court of Justice to rule on the old German data retention law before deciding on whether to impose data retention throughout the EU. In the meantime, Member States such as Belgium or Denmark are proceeding with national schemes.
Studies found that data retention laws have had no measurable effect on the crime rate or the crime clearance rate in any EU country. Requests for communications data are rarely unsuccessful even in the absence of indiscriminate data retention legislation.
Methodology and data behind the map
The government proposes to use the offences under article 90ter of the Belgian “Code d’instruction criminelle” as a proxy for ‘serious crime’. The data about crime statistics in the different areas of Belgium over the years is publicly available; it was scraped and put into an excel sheet, where the relevant crimes were taken into account as accurately as possible, and the other categories discarded. It was then calculated whether the thresholds were met (3, 5 and 7 offences per 1000 inhabitants on average for the last 3 years warrant respectively 6, 9 and 12 months of data retention). This gives an approximation of the rate of serious crimes, and therefore allows us to map which zones of the territory fall under the ‘targeted’ scheme of data retention as proposed.
Note: the “exposé des motifs” of the proposal provide data about two zones: Brussels and Charleroi. Compared to those, our map’s crime figures are too high by about 18% for Brussels and too low by about 12% for Charleroi. This lack of accuracy results from the organic mapping of the relevant crimes under article 90ter, and it does not undermine the mapping, as both areas would still be covered even if the data were exactly congruent with the figures provided in the proposal. This remains the first publicly-available mapping of the impact of the proposal, and it is up to the government to challenge the calculations and provide us with more accurate figures.