Some time tomorrow, the Swedish Parliament will vote on whether to push Sweden yet another significant step towards a surveillance state through traffic data retention. The debate has been characterized by deliberate misinformation targeted at lawmakers in order to push for the surveillance.
Claiming that somebody is lying is a very harsh, and somewhat unpolitical, use of language. But the fact remains — at some point, somebody has lied to the people now pushing these arguments for retaining traffic data for the police to use. I can’t really blame the people repeating the arguments — but I would start to blame them if they didn’t take the time to get informed before the vote tomorrow.
Here are the three most common (untrue) arguments being used to push Parliament into voting for Data Retention tomorrow:
1. Telecom operators store traffic data anyway.
“This data is already stored anyway; the Data Retention Directive is actually good as it ensures a maximum storage term and ensures that only authorities can access it.” I’ve heard this argument from people in the Cabinet as well from newly-elected Members of Parliament. This is astonishing, as it is plainly untrue: it is a way of attempting to whitewash data retention into something privacy-positive.
So let’s look at the facts. The law today says that no telecoms operator is allowed to retain traffic data beyond what is necessary to deliver the message and, if applicable, send an invoice. This is laid out extremely clear in Law on Electronic Communications, chapter 6, paragraph 5, my bolding:
5 § Traffic data referring to users that are physical people or referring to subscribers and which are being stored or processed in other ways by the person running an [electronic communications] operation, which is subject to notification according to chapter 2 § 1, shall be eradicated or de-identified when they are no longer needed to transmit an electronic message, unless they may be saved for such processing as described in § 6 or § 13 [unless needed for invoicing and may only be retained until this is complete].
The proposed law takes a surveillance mechanism that is explicitly forbidden for concerns of civil liberties and privacy and turns it from forbidden into mandatory. It’s not a matter of setting maximum terms. It’s a matter of turning a violating surveillance from forbidden into mandatory.
2. Sweden has to, or we will be fined by the Commission.
In recent days, there has been a number of timely leaks to media of how much Sweden would be fined by the European Union if we don’t follow the directive that mandates traffic data retention. This is false for two reasons.
First, there is a well-established process if a member state of the European Union determines that a directive is in violation of Fundamental Rights. Sweden has the option to follow that process and challenge the directive, rather than voting tomorrow. However, the Swedish Cabinet has chosen to push for implementing the massive surveillance instead.
Second, it is technically true that the Commission may issue a fine to Sweden for this. But the story is really about how the expense would be unnecessary, and in that context, it is absolutely necessary to take the cost of implementing the surveillance into account. The mentioned sums for a fine have been €5M in an initial fine and €15M per year. The cost for putting the surveillance in place is €75M initially and at least €20M per year running.
So if finance is the concern, we should absolutely say blankly no to this abhorrence. It’s much cheaper to pay for the fine than for the surveillance.
3. The Police needs this surveillance.
First, there is an important point to make here. The Police doesn’t need this surveillance. The Police wants this surveillance. That distinction is very important. In democratic states, we have a tradition of not letting the Police do anything they want. I think that’s a good tradition.
Also, it’s not true that the Police needs the surveillance. Real numbers from Germany, before the data retention was declared unconstitutional and all the data ordered destroyed, shows that a mere 0.002% of investigations were assisted by retained traffic data. Zero point zero zero two per cent. That’s nowhere near motivating a blanket surveillance of the entire population at this cost to finance and civil liberties.
And yet, experience from other countries shows that several hundred thousand pieces of information from the surveillance were used yearly in countries before being killed by constitutional courts.
The current political situation in Europe
Apart from Sweden, there are three countries that have not implemented this blanket surveillance of the whole population: Greece, Ireland, and Austria. In addition, four other countries – Cyprus, Germany, Hungary and Romania – have had the surveillance declared unconstitutional by the courts.
The current political situation in Sweden
The Cabinet is pushing Parliament to vote for the data retention this week, as an evaluation of the European directive will be presented by the Commission next week, and it is expected to be nothing short of damning and suggesting European action somewhere between a backpedal and making the directive voluntary. That’s another fine example of how to avoid acting responsibly; the only prudent course of action would be to await the evaluation, as it is expected to say “don’t do this, the evaluation shows it was a really bad idea”.
Two or three parties are expected to invoke a constitutional safeguard in Sweden. Whenever fundamental rights are being reduced, one-sixth of Parliament may postpone the decision for one year. The difference between two or three parties is crucial: The Green Party and the Left Party thinks that the surveillance is a really bad idea and are basically doing everything they can. However, they are not enough to make one-sixth of Parliament. This leaves us needing the support of the far-right Sweden Democrats.
The Sweden Democrats (nicked Sverrarna in Swedish) want this surveillance, but they are demanding more than the proposed storage term, and they are also demanding that the storage only may take place within Swedish borders. As a slap on the wrist to the Cabinet, they are expected to vote for postponement, but for all the wrong reasons. Ministers have been approaching them over the past few days and giving increasing support for their line — so the quarter is really spinning up in the air at this point.
The chairman of the youth wing of the major governing party (MUF) is telling his older colleagues to do the right thing and vote no in an op-ed piece today, against the wishes of the party management and the Cabinet. This is quite extraordinary.
Other bloggers: Anna Troberg (alpha bravo charlie delta echo foxtrot golf hotel india juliet), Christopher Kullenberg, Fredrik, Jens Holm, Marcus Fridholm, Farmor Gun, Opassande Emma (alpha bravo), Oscar Swartz, RDJ, Lake (alpha bravo charlie delta), Hax (alpha bravo charlie).
Op-ed today by our Member of European Parliament: Sweden Should Postpone The DRD.