Data retention


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 of telephony and internet traffic and transaction data 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 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 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 require 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 Internet service providers 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:
  • Trace and identify the source of a communication;
  • Trace and identify the destination of a communication;
  • Identify the date, time, and duration of a communication;
  • Identify the type of communication;
  • Identify the communication device;
  • Identify the location of mobile communication equipment.
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 has confirmed that it has been working with the ETSI LI Technical Committee since 2003.

Criticism and abolishment

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.
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, 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, 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

has implemented the EU data retention directive and much more, by logging all internet flow or sessions between operators and operators and consumers.
  • "2.2.1. Session logging Providers of access to the internet must, in respect of the initiating and terminating package of an internet session, retain data that identifies the sending and receiving internet protocol address, the sending and receiving port number and the transmission protocol."
  • "2.2.2. Sampling The obligation to retain data about the initiating and terminating package of an internet session does not apply to providers in case such retention is not technically feasible in their systems. In that case, data must instead be retained for every 500th package that is part of an end user's communication on the internet."
  • "2.2.5. Hot spots In addition to the internet data that must otherwise be retained, the provider must retain data that identifies the precise geographic or physical location of a hot spot and the identity of the communication equipment used. This means that a provider of internet access via a hot spot must retain data on a user's access to the internet and, at the same time, retain data that identifies the geographic location of the hot spot in question."