[e-privacy] [DR] DATA RETENTION BY TELECOMMUNICATION SERVICE PROVIDERS

[Andrea Glorioso]

http://ue.eu.int/cms3_applications/Applications/newsRoom/LoadDocument.asp?directory=en/jha/&filename=82937.pdf

DATA RETENTION BY TELECOMMUNICATION SERVICE PROVIDERS

The Council examined the scope of the draft Framework Decision on data
retention.

The proposal implies in principle that providers of publicly available
electronic communications  services or  networks must retain specified
data allowing for establishing the source, routing, destination, time,
date   and  duration   of communications  and   the  location  of  the
telecommunications devices used.  In  its original form, the  proposal
seems to be limited to data already processed  and stored for billing,
commercial and other legitimate purposes.

But  this approach would imply   that the possibilities  for access to
data    for  law enforcement purposes    depend  on the  technical and
commercial setup  of each  individual service  provider.  Some service
providers apply  systems, such as flat rate  systems, which imply that
relevant   data,  processed    for the    purpose  of  providing   the
telecommunication   concerned,   is  erased   immediately   after  the
communication has been terminated.

Therefore  the Council  instructed  its preparatory  bodies to examine
another   approach implying an obligation   for  service providers  to
retain relevant  data defined  in a  common   list in the  instrument,
provided that the data  is processed/generated by the service provider
in   the  process   of    supplying  the  telecommunications   service
concerned. Particular    consideration   should   be  given  to    the
proportionality of the  measure in relation   to costs, privacy  (data
protection) and efficiency.

This approach may   lead to  a  higher  degree of   certainty for  the
retention  of the data  concerned,   and  is less  sensitive  to   the
commercial  behaviour  of    the  service    provider  and   technical
developments.  The  service provider would  be  under an obligation to
retain    the  data  concerned  to the     extent  that the    data is
processed/generated by  the service provider, even if  the data has no
interest  for the service  provider.   The level  of harmonisation  of
Member States' legislation would be relatively high.

Judicial authorities and law enforcement  authorities have during  the
last years  increasingly expressed concerns  regarding the  use of the
technical innovations, brought  about by the continuous development of
electronic telecommunications services,  for the purpose of committing
crimes, and the difficulties which  this may cause regarding detection
of crimes  and investigation  into  crimes. These concerns  relate not
only to communications  by fixed phones,  mobile phones, short message
services  (SMS), electronic   media  services (EMS)   and multi  media
services (MMS). Increasingly,  they also relate to internet  Protocols
including  Email,  voice over  the    internet, world wide  web,  file
transfer  protocols, network transfer  protocols, voice over broadband
etc.

The proposal was made in the light of in particular the Declaration by
the European Council of 25 March 2004 on combating terrorism. The text
strongly  highlighted in particular  the use of telecommunications for
the purpose of the commission of terrorist acts. The Declaration of 25
March proves that an instrument on data retention should be adopted by
June 2005.

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Ciao,

--
Andrea Glorioso             sama at miu-ft.org         +39 333 820 5723
        .:: Media Innovation Unit - Firenze Tecnologia ::.
	      Conquering the world for fun and profit