The Swedish data retention drama

Following the European Court of Justice (ECJ) verdict revoking the EU directive on data retention, the issue is developing into some sort of dark farce in Sweden.

While several other EU member states, the lawyers at the EU Council and the EU Data Protection Group have declared that this is the death of blanket data retention–the Swedish government (both the former center-right government and the new social democrat-green one) is keen to continue to store data about all citizen’s all phone calls, text messages, e-mails, net connections and mobile positions.

After the ECJ ruling the responsible Swedish government authority, Post- och Telestyrelsen (PTS) announced that it would not go after telecom companies and internet service providers who wished to end storing the data in question.

And no surprise, most of these companies did.

At the next step, the then Swedish Minister of Justice said that she believed Swedish data retention not to be in breach with European human rights–even though it is a rather direct implementation of the EU directive. This was soon echoed by the incoming social democratic government spokespersons.

So, the issue was sent to a (very small) commission headed by a former national police commissioner. To the surprise of nobody, he presented preliminary findings saying that all is fine with Swedish blanket data retention. (This despite the ECJ:s objections about the “blanket” part of it.)

Before you knew it, PTS changed its position. Totally. Now they declared that it would uphold the Swedish data retention laws and that operators and ISP:s must continue to store data on all citizen’s all telecommunications.

Some did. Others, like Tele 2 didn’t, but was ordered to and finally complied. And one, privacy orientated Bahnhof (Swedens first ISP) refused completely.

At this point Bahnhof and the 5:th of July Foundation took the whole thing to the European Commission, complaining that Sweden doesn’t follow the relevant ECJ ruling and the European Human Rights Charter (that is part of the EU treaties). But yet, there are no indications about what the Commission is going to do about it.

Bahnhof also requested access to the PTS first assessment of the issue, the one leading to no action being taken against those who don’t store this data. That request lead to PTS trying to re-classify the assessment in a way so that it will not be covered by Sweden’s generous freedom of information laws. (This was done in a rather dubious way.) That issue is now developing to a drama in it self.

And now, also Bahnhof has been ordered by PTS to resume data retention. With one difference from the order handed over to e.g. Tele 2: In the Bahnhof case the order is attached with a threat of a fine of some 550.000 euros (five million Swedish kronor).

I guess this is the way you get treated when you stand up against the government.

But Bahnhof is still defiant and its CEO Jon Karlung has promised to present a “plan B” to protect its customers privacy.

This story is to be continued.

/ HAX