Telecommunications data provides a crucial tool to law enforcement authorities in the fight against serious crime and terrorism. On 14 December 2005 the European Parliament voted to accept revised and final wording for a new directive on the retention of telecommunications data (the “Directive”). The Directive harmonises pan-European rules for the retention of electronic communications data and will require communications service providers to retain traffic and location data, including subscriber and user data, but not the content of any relevant communications. The retained data will be available for detecting, investigating and prosecuting serious crime. The definition of “serious crime” will be determined by the member states.
The Directive provides the following key provisions:
- It introduces a data retention period of 6-24 months, with an option for member states to introduce longer periods where circumstances warrant an extension for a limited period.
- E-mail and Internet telephony data are required to be retained. This includes data relating to unsuccessful call attempts, but this does not need to be retained if the provider does not already retain such data for its own business purposes.
- There is no obligation on member states to reimburse service providers for the costs of such data retention, however member states may choose whether or not to compensate providers.
- The Directive does not regulate the access to, or use of, the retained data. This is has been left for the member states to decide under their national laws (subject to their international legal obligations).
Once the Directive is adopted, member states will have approximately 18 months in which to implement the Directive, although they have the option to defer implementation of the provisions requiring the retention of Internet data for an additional 18 months.
Civil liberties groups are concerned that some member states, such as Poland, may abuse the right to introduce longer data retention periods than those currently set out in the Directive. Poland recently indicated that it wished to introduce retention periods of up to 15 years.
The right of Member States to define “serious crime” has also raised the interest of certain industries, in particular the recording and movie industries. It has already been suggested that access to the retained data should granted for the purpose of investigating other crimes, or even intellectual property infringement. This could lead to an unfortunate position where an instrument brought in as an anti-terrorist measure is used to obtain evidence against file sharers.
This article first appeared in our Technology Annual Review, March 2006. To view this publication, please click here to open in a new window.
