EFF to European Commission: Don’t Resurrect Illegal Data Retention Mandates

The mandatory retention of metadata is an evergreen of European digital policy. Despite a number of rulings by Europe’s highest court, confirming again and again the incompatibility of general and indiscriminate data retention mandates with European fundamental rights, the European Commission is taking major steps towards the re-introduction of EU-wide data retention mandates. Recently, the Commission launched a Call for Evidence on data retention for criminal investigations—the first formal step towards a legislative proposal.

The European Commission and EU Member States have been attempting to revive data retention for years. For this purpose, a secretive “High Level Group on Access to Data for Effective Law Enforcement” has been formed, usually referred to as High level Group (HLG) “Going dark”. Going dark refers to the false narrative that law enforcement authorities are left “in the dark” due to a lack of accessible data, despite the ever increasing collection and accessing of data through companies, data brokers and governments. Going dark also describes the intransparent ways of working of the HLG, behind closed doors and without input from civil society.

The Groups’ recommendations to the European Commission, published in 2024, read like a wishlist of government surveillance.They include suggestions to backdoors in various technologies (reframed as “lawful access by design”), obligations on service providers to collect and retain more user data than they need for providing their services, and intercepting and providing decrypted data to law enforcement in real time, all the while avoiding to compromise the security of their systems. And of course, the HLG calls for a harmonized data retention regime, including not only the retention of but also the access to data, and extending data retention to any service provider that could provide access to data.

EFF joined other civil society organizations in addressing the dangerous proposals of the HLG, calling on the European Commission to safeguard fundamental rights and ensuring the security and confidentiality of communication.

In our response to the Commission’s Call for Evidence, we reiterated the same principles. 

• Any future legislative measures must prioritize the protection of fundamental rights and must be aligned with the extensive jurisprudence of the Court of Justice of the European Union. 
• General and indiscriminate data retention mandates undermine anonymity and privacy, which are essential for democratic societies, and pose significant cybersecurity risks by creating centralized troves of sensitive metadata that are attractive targets for malicious actors. 
• We highlight the lack of empirical evidence to justify blanket data retention and warn against extending retention duties to number-independent interpersonal communication services as it would violate CJEU doctrine, conflict with European data protection law, and compromise security.

The European Commission must once and for all abandon the ghost of data retention that’s been haunting EU policy discussions for decades, and shift its focus to rights respecting alternatives.

Read EFF’s full submission here.