Storage of telephony and internet traffic and transaction metadata
Data retention defines the policies of persistent data and records management for meeting legal and business data archival requirements. Although sometimes interchangeable, it is not to be confused with the Data Protection Act 1998.
The different data retention policies weigh legal and privacy concerns economics and need-to-know concerns to determine the retention time, archival rules, data formats, and the permissible means of storage, access, and encryption.
Implementation.
In the field of telecommunications, "data retention" generally refers to the storage of call detail records (CDRs) of telephony and internet traffic and transaction data (IPDRs) by governments and commercial organisations. In the case of government data retention, the data that is stored is usually of telephone calls made and received, emails sent and received, and websites visited. Location data is also collected.
The primary objective in government data retention is traffic analysis and mass surveillance. By analysing the retained data, governments can identify the locations of individuals, an individual's associates and the members of a group such as political opponents. These activities may or may not be lawful, depending on the constitutions and laws of each country. In many jurisdictions, access to these databases may be made by a government with little or no judicial oversight.
In the case of commercial data retention, the data retained will usually be on transactions and web sites visited.
Data retention also covers data collected by other means (e.g., by Automatic number-plate recognition systems) and held by government and commercial organisations.
Policies.
A data retention policy is a recognized and proven protocol within an organization for retaining information for operational use while ensuring adherence to the laws and regulations concerning them. The objectives of a data retention policy are to keep important information for future use or reference, to organize information so it can be searched and accessed at a later date and to dispose of information that is no longer needed.
The data retention policies within an organization are a set of guidelines that describes which data will be archived, how long it will be kept, what happens to the data at the end of the retention period (archive or destroy) and other factors concerning the retention of the data.
A part of any effective data retention policy is the permanent deletion of the retained data; achieving secure deletion of data by encrypting the data when stored, and then deleting the encryption key after a specified retention period. Thus, effectively deleting the data object and its copies stored in online and offline locations.
By region.
Australia.
In 2015, the Australian government introduced mandatory data retention laws that allows data to be retained up to two years. The scheme is estimated to cost at least AU$400 million per year to implement, working out to at least $16 per user per year. It requires telecommunication providers and ISPs to retain telephony, Internet and email metadata for two years, accessible without a warrant, and could possibly be used to target file sharing. The Attorney-General has broad discretion on which agencies are allowed to access metadata, including private agencies.
The Greens were strongly opposed to the introduction of these laws, citing privacy concerns and the increased prospect of 'speculative invoicing' over alleged copyright infringement cases. The Labor Party initially opposed as well, but later agreed to passing the law after additional safeguards were put in place to afford journalists some protection.
European Union.
On 15 March 2006, the European Union adopted the Data Retention Directive. It required Member States to ensure that communications providers retain data as specified in the Directive for a period of between 6 months and 2 years in order to:
The data was required to be available to "competent" national authorities "for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law".
The Directive covered fixed telephony, mobile telephony, Internet access, email, and VoIP. Member States were required to transpose it into national law within 18 months—no later than September 2007. However, they could if they wished postpone the application of the Directive to Internet access, email, and VoIP for a further 18 months after this date. A majority of Member States exercised this option. All 28 EU States at the time notified the European Commission about the transposition of the Directive into their national law. Of these, however, Germany and Belgium had only transposed the legislation partially.
A report evaluating the Directive was published by the European Commission in April 2011. It concluded that data retention was a valuable tool for ensuring criminal justice and public protection, but that it had achieved only limited harmonisation. There were serious concerns from service providers about the compliance costs and from civil society organisations who claimed that mandatory data retention was an unacceptable infringement of the fundamental right to privacy and the protection of personal data according to EU law.
In response to the report, on May 31, 2011, the European Data Protection Supervisor expressed some concerns on the European Data Retention Directive, underlining that the Directive "does not meet the requirements imposed by the fundamental rights to privacy and data protection".
Social networks.
In November 2012, answers to a parliamentary inquiry in the German Bundestag revealed plans of some EU countries including France to extend data retention to chats and social media. Furthermore, the German Federal Office for the Protection of the Constitution (Germany's domestic intelligence agency) has confirmed that it has been working with the ETSI LI Technical Committee since 2003.
Criticism.
Criticisms of the directive arose. The council's Legal Services was reported to have stated in closed session that paragraph 59 of the European Court of Justice's ruling "suggests that general and blanket data retention is no longer possible". A legal opinion funded by the Greens/EFA Group in the European Parliament finds that the blanket retention data of unsuspected persons generally violates the EU Charter of Fundamental Rights, both in regard to national telecommunications data retention laws and to similar EU data retention schemes (PNR, TFTP, TFTS, LEA access to EES, Eurodac, VIS).
Digital Rights Ireland brought the directive to the High Court of Ireland, which then brought it further to the European Court of Justice of the European Union. The case was also joined by the Constitutional Court of Austria. The Court on 8 April 2014 declared the Directive 2006–24/EC invalid for violating fundamental rights, stating that "the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data".
This led further to that the member states in various degrees abolished or modified their implementations of the directive. Since the Swedish implementation of the directive was kept in a similar manner, the Swedish implementation was brought to the European Court by the telecom provider Tele2, and the case was merged with a similar case from the United Kingdom, initiated by three persons with intervention by Open Rights Group, Privacy International and The Law Society of England and Wales. Since the original directive no longer existed, the basis for the judgment was an exception to the "Directive on privacy and electronic communications" in its Article 15(1), referring to the possibility to exceptionally apply data retention for fighting serious crime. On the 21 of December 2016 the Court ruled that "the protection of privacy in the electronic communications sector must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication." Blanket data retention was ruled out another time, but the actual consequences all over the EU are varied and under discussion since then.
Czech Republic.
Implementation of the directive was part of Act. No. 259/2010 Coll. on electronic communications as later amended. Under Art. 97 (3), telecommunication data are to be stored between 6 and 12 months. The Czech Constitutional Court has deemed the law unconstitutional and found it to be infringing on the peoples right to privacy.
As of July 2012, new legislation was on its way.
Denmark.
Denmark has implemented the EU data retention directive and much more, by logging all internet flow or sessions between operators and operators and consumers.
Germany.
The German Bundestag had implemented the directive in "Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG". The law became valid on 1 January 2008. Any communications data had to be retained for six months. On 2 March 2010, the Federal Constitutional Court of Germany ruled the law unconstitutional as a violation of the guarantee of the secrecy of correspondence. On 16 October 2015, a second law for shorter, up to 10 weeks long, data retention excluding email communication was passed by parliament. However, this act was ruled incompatible with German and European laws by an injunction of the Higher Administrative Court of North Rhine-Westphalia. As a result, on June 28, 2017, three days before the planned start of data retention, the Federal Network Agency suspended the introduction of data retention until a final decision in the principle proceedings.
Italy.
In July 2005 new legal requirements on data retention came into force in Italy.
Italy already required the retention of telephony traffic data for 48 months, but without location data. Italy has adopted the EU Directive on Privacy and Electronic Communications 2002 but with an exemption to the requirement to erase traffic data.
Portugal.
The directive was transposed into law by Law 32/2008. In December 2017, D3 – Defesa dos Direitos Digitais, a Portuguese digital rights organization, presented a complaint to the Justice Ombudsman, based on the case law of the Court of Justice of the European Union, following several opinions of the Portuguese Data Protection Authority. In January 2019, the Ombudsman issued an official recommendation to the Justice Ministry, defending the need to change the national law, in order to comply with the CJEU case law. Some weeks later, in March, the Ombudsman received an answer by the Minister of Justice, where the Minister refused changes to the law. As such, in August 2019, the Ombudsman decided to ask the Portuguese Constitutional Court for a ruling on the constitutionality of the law. In 2022, the Portuguese Constitutional Court published its decision, striking down Law 32/2008 as unconstitutional. Among other things, the Court considered that an undifferentiated and generalized obligation to store all traffic and location data relating to all people did not respect the proportionality principle. In response to this decision, the parliament created a data retention working party, which studied the subject for more than a year and held several hearings with experts. In 2023, a law proposal was approved in the parliament. However, the President of the Republic decided to make use of its prerogative of asking the Constitutional Court for a preventive rule, before approving the law. In this ruling, the Constitutional Court once again decided against the proposed data retention regime, for similar reasons, as the law still required indiscriminate and general data retention of traffic and location data. The diploma was returned to the Parliament and did not become law. In 2024, the Parliament approved a new law proposal. This time, the President of the Republic opted for not requesting a preventive rule from the Constitutional Court, and so the law was published and entered into force. The digital rights association D3 – Defesa dos Direitos Digitais maintains that the current law is still a violation of fundamental rights, as it delegates core elements of a fundamental rights restriction to a special formation of the Supreme Court. This makes it impossible to demonstrate the required proportionality of the restriction, or to demonstrate how the data retention regime preserves the essential core of the restricted fundamental rights, as it must.
Romania.
The EU directive has been transposed into Romanian law as well, initially as Law 298/2008. However, the Constitutional Court of Romania subsequently struck down the law in 2009 as violating constitutional rights. The court held that the transposing act violated the constitutional rights of privacy, of confidentiality in communications, and of free speech. The European Commission has subsequently sued Romania in 2011 for non-implementation, threatening Romania with a fine of 30,000 euros per day. The Romanian parliament passed a new law in 2012, which was signed by president Traian Băsescu in June. The Law 82/2012 has been nicknamed "Big Brother" (using the untranslated English expression) by various Romanian