Data Retention gets underway…..

March 2009 - and just a few days from the last date set for transposition of the European Data Retention Directive - 2006/24/EC. Well, the second of the dates set within the Directive. The Directive progressed through the European legislative process with unusual haste and during the UK Presidency from July to December 2005.

Certainly the Madrid bombings of 2004 and then the London events of July 2005 focussed attentions but this Directive holds the record for the fastest progression through the process, reaching agreement in the European Parliament in December 2005 - just before the rotating European Presidency passed to Austria, a state known to be opposed to the retention measures. Came 2006 and progression to the Council of Ministers. The Directive was published in the Official Journal of the European Union in March 2006 - and the transposition clock began to tick.

The Directive provides two dates - September 15th 2007 and March 15th 2009. These are 18 and 36 months respectively from the publication date. The first date (2007) represented the point by which all member states were required to transpose the Directive to national law in relation to the retention of data relating to fixed line and mobile telephone calls. There was then a derogation to allow a further 18 months for the transposition of regulations relating to Internet traffic - Internet access, email and Internet telephony (VoIP). Some states opted to go for the whole retention at the first point - but the majority (16) announced that they would take advantage of the additional time. The second date, by which all member states are expected to have transposed regulations relating to Internet traffic is 15th March - in just two weeks time!

The UK brought forward its first set of regulations in 2007. Passing through Parliament in July they came into force on 1st October 2007. These provide for the retention of telephone traffic data only - in line with the UK’s published derogation.

It was clear that transposing the second phase was going to be more of a problem. Not the least of which is that telephone data - date/time/duration/initiating number/destination number - is all normally retained for commercial purposes ie billing. With always on Internet access (broadband) or flat rate dial up there is no need to retain Internet access data for billing purposes. That meant that the data was not retained to the same extent - retained perhaps for operational and technical management but not for commercial reasons.

Came 2008 and there was concern amongst the CSPs (that’s Communications Service Providers - catch all term to include Telephone Service Providers as well as Internet Service Providers) that the clock was running and that there was little sign of action from the Home Office in relation to understanding the differences between telephone and Internet retention.

Govt. eventually published a Consultation Paper in August 2008. The paper set out the Govt. view of the business case (why we need to retain data) together with a draft of the Regulations proposed to implement Internet retention. The consultation paper invited responses - by the end of October. Responses were forthcoming from industry and some private individuals but the Govt. response did not appear untiol February 2009. Not leaving much time to implement before the deadline!