In the same week the Dutch Senate approved a long-anticipated shortening of mandatory retention periods for internet data to six months, it published its correspondence with the Dutch Minister of Security and Justice on the Data Retention Directive evaluation by the European Commission. In a 31 May 2011 letter to the Minister, the Senate considers the evaluation report ‘unsatisfying’, ‘unconvincing’ and ‘disappointing’ and explicitly asks the Minister whether the Directive should be withdrawn.

The Senate letter (only in Dutch) contains a long list of criticism on the evaluation report (PDF). Most notably, the Senate concludes that the report does not adequately demonstrate the necessity and proportionality of the Directive (2006/46/EC) and that it fails to prove a ‘pressing social need’ for the Directive, as the E-Privacy Directive (2002/58/EC) already provides for storage of certain traffic data for billing and marketing purposes. The Senate also voiced reservations on its effectiveness. All these criteria – necessity, proportionality, pressing social need, effectiveness – have to be met in order to meet the safeguards of the European Convention on Human Rights (ECHR).

The Senate also criticises the report for ‘too easily sidestepping’ several Constitutional Court cases across the European Union, in which implementation laws were ruled unconstitutional or the principle of blanket data retention itself was deemed in breach of the ECHR. And it points out that the Dutch submission to the evaluation is particularly unsatisfying and ‘methodologically questionable’. Finally, it reiterates the fact that historic traffic data were already available after the London and Madrid bombings, without a Directive mandating blanket retention schemes being in place. On the basis of its analysis, the Senate asks the Minister whether the withdrawal of the Directive should be considered.

The Minister, Ivo Opstelten, responded in a 27 June letter that the Dutch government still thinks data retention ‘plays an important role in the law enforcement effort’, but he conveniently delays any further explanation until the European Commission proposes changes to the Directive. Interestingly, Mr. Opstelten suggests that the Senate write a letter directly to the Commission and/or Parliament to voice its concerns.

Since 2004, the Senate has been critical of data retention and hesitant to implement the Directive in Dutch law in 2009. But in this recently published letter, the Senate is as explicit and unanimous as ever. As The Netherlands lacks a Constitutional Court to definitely rule on the constitutionality of laws, the Senate has an important say in whether Dutch legislation breaches constitutional safeguards. Its critique of the evaluation report could signal that it will in due course call upon the government to take a critical stance on amending or annulling the Directive during negotiations in the Council of European Ministers.

In anticipation of the Commission to hide the numerous failures of the Directive by omission and dissemblance, EDRi produced a “shadow report” (PDF) on 17 april 2011, providing a more accurate assessment of the Directive, using the Commission’s own methodology.

This article was published earlier in the EDRi-gram, the bi-weekly newsletter about digital civil rights in Europe. Bits of Freedom is a founding member of EDRi, the European umbrella organisation of 29 civil rights organisations in 19 EU Member States.