In the field of telecommunications, data retention (or data preservation) 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 web sites 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 (e.g. USA, UK, Australia).
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 numberplate recognition systems) and held by government and commercial organisations.
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On 15 March 2006 the European Union adopted Directive 2006/24/EC, on "the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC".[1][2] The Directive requires Member States to ensure that communications providers retain, for a period of between 6 months and 2 years, necessary data as specified in the Directive
The data is required to be available to competent national authorities in specific cases, "for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law".
The Directive covers fixed telephony, mobile telephony, Internet access, Internet email and Internet telephony. Member States were required to transpose it into national law within 18 months - i.e. no later than September 2007. However, they may if they wish postpone the application of the Directive to Internet access, Internet email and Internet telephony for a further 18 months after this date. A majority of Member States exercised this option. To date [4] 22 Member States have transposed the Directive, one (Sweden) has yet to transpose and three (Romania, Germany, Czech Republic) had previously transposed until their respective courts ruled the national transposing laws to be unconstitutional.
A report evaluating the Directive was published by the European Commission in April 2011. [5]
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 claim that mandatory data retention was an unacceptable infringement of the fundamental right to privacy and the protection of personal data. The Commission is now reviewing the legislation.
In response to the report, on May 31, 2011, the European Data Protection Supervisor expressed some critical remarks 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”.
The United Kingdom has a system of voluntary data retention which derives from Part 11 of the Anti-Terrorism, Crime and Security Act 2001. Telephone operators and Internet Service Providers retain some data [see below] under a voluntary arrangement with the UK Home Office.
The Part 11 of the Act contains a number of sections which deal with the retention of communications data by fixed line and mobile telephone service providers and internet service providers [service providers]. Communications data includes data which identifies the users of services, data which identifies which services were used and when they were used, and data which identifies who the user contacted. It does not include the content of communications. For example, in the case of a call from a mobile telephone the data to be retained would include data identifying the owner of the phone, who was called, the duration of the call and the approximate locations of both parties. It would not include what was said during the call.
The Act requires the Secretary of State for the Home Office to issue a voluntary code of practice on data retention. This has been done. A code of practice has been issued and contains the requirements set out below. If the Secretary of State believes that the voluntary code of practice is not effective then he may make the code compulsory by issuing a statutory instrument which must be approved by both Houses of Parliament. This has not yet been done.
Other legislation affecting data retention includes the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. These require service providers to destroy or anonymise data when it is not longer required for commercial purposes [e.g. billing]. The provisions of Part 11 of the Anti-terrorism, Crime and Security Act 2001 override these requirements.
Any compulsory scheme of data retention would also be affected by Article 8 (the respect for the right of privacy) of the European Convention on Human Rights. This would require the destruction or anonymisation of communications data, but article 8(2) of the European Convention on Human Rights permits an interference with individual’s right to privacy if it is necessary in the interests of national security and the prevention and detection of certain types of crime. If the UK government was not to be challenged under Article 8 of the Human Rights Act it would need to demonstrate that any statutory requirement for data retention was proportionate.
Subscriber Information - retention period 12 months
Telephony Data - retention period 12 months
quintuples, global titles of equipment communicating with or about the subscriber.
In addition it has been reported that the UK police and security services have the following additional capabilities on mobile telephones, provided by telephone operators, but not covered by the voluntary code.
SMS, EMS and MMS Data - retention period 6 months. Calling number, IMEI - Called number, IMEI - Date and time of sending - Delivery receipt - if available - Location data when messages sent and received, in form of lat/long reference.
Email Data – retention period 6 months. Log-on (authentication user name, date and time of log-in/log-off, IP address logged-in from) - sent email (authentication user name, from/to/cc email addresses, date and time sent) - received email (authentication user name, from/to email addresses, date and time received).
ISP Data – retention period 6 months. Log-on (authentication user name, date and time of log-in/log-off, IP address assigned, Dial-up: CLI and number dialed, Always-on: ADSL end point/MAC address (If available).
Web Activity Logs – retention period 4 days. Proxy server logs (date/time, IP address used, URL’s visited, services. The data types here will be restricted solely to Communications Data and exclude content of communication. Web browsing information is retained to the extent that only the host machine or domain name (web site name) is disclosed. For example, within a communication, data identifying www.homeoffice.gov.uk would be traffic data, whereas data identifying www.homeoffice.gov.uk/kbsearch?qt=ripa+traffic=data would be content and not subject to retention.
Other Services - retention period relative to service provided. Instant Message Type Services (log-on/off time) if available.
Collateral Data - retention period relative to data to which it is related. Data needed to interpret other communications data, for example the mapping between cell mast identifiers and their location, and the translation of dialing (as supported by IN networks).
Postal data - retention period unknown. Information written on the outside of a postal item (such as a letter or parcel, online tracking of postal items, records of postal items, such as records of registered, recorded or special delivery postal items, records of parcel consignment, delivery and collection
Banking data - seven years. It has been reported in the UK Economist magazine that UK banks are required to retain data on all financial transactions for seven years. This has not been verified. It is not clear whether data on credit card transactions is also retained for seven years.
Vehicle movement data - two years. Leaked documents[4] from the Association of Chief Police Officers [ACPO] have revealed that the UK is planning to collect data from a nationwide network of automatic numberplate recognition cameras and store the data for two years in a controversial new centre being built at Hendon. This data could then be linked[5] with other data held by the government and watchlists from the police and security services.
The bodies that are able to access retained data in the United Kingdom are listed in the Regulation of Investigatory Powers Act 2000 (RIPA). These are the following:
However, the Regulation of Investigatory Powers Act 2000 (RIPA) also gives the Home Secretary powers to change the list of bodies with access to retained data through secondary legislation. The list of authorised bodies now includes[6]:
The justifications for accessing retained data in the United Kingdom are set out in the Regulation of Investigatory Powers Act 2000 (RIPA). They are -
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.[7]
In July 2005 new legal requirements[8] on data retention came into force in Italy.
Subscriber information Internet cafes and public telephone shops with at least three terminals must seek a license permit within 30 days from the Ministry of Home Affairs. They must also store traffic data for a period which may be determined later by administrative decree. WIFI hotspots and locations that do not store traffic data have to secure ID information from users before allowing them to log on. For example, users may be required to enter a number from an ID card or driving license. It is not clear how this information is validated. Mobile telephony users must identify themselves before service activation, or before a SIM may be obtained. Resellers of mobile subscriptions or pre-paid cards must verify the identity of purchasers and retain a photocopy of identity cards.
Telephony data Data, including location data, on fixed line and mobile telephony must be retained for 29 months. There is no requirement to store the content of calls. Telephony operators must retain a record of all unsuccessful dial attempts.
ISP data Internet service providers must retain all data for at least six months. The law does not specify exactly what traffic data must be retained. There is no requirement to store the content of internet communications.
Legality The legislation of July 2005 enables data retention by outlawing all the relevant data protection provisions until 31 December 2007. Under the data protection provisions, service providers are obliged to store traffic data and user data for no less than 365 days, even if they no longer need it to process the communication or to send bills, policy requires user id information, location, tracking data be stored and kept on file for easy access by law enforcement and/or other authorities who request this information (permission must be asked to view sensitive user id data on file). The traffic data which will now be retained can be used for anti-terrorism purposes and for general penal enforcement of criminal offences large and small.
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.
Denmark has implemented the EU data retention directive and much more, by logging all internet flow or sessions between operators and operators and consumers.[9]
Sweden has not yet implemented Directive 2006/24/EC. There is a proposal that data should be retained for one year,[10] but the Government coalition has agreed that should be retained for six months. The European Commission has filed a complaint against Sweden for not implementing the directive within the required timeframe.[11]
It has been revealed by a leak from the Swedish National Defence Radio Establishment that the agency in regard to international communication is collecting all traffic data in its central database, the Titan traffic database.[12][13]
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".[14] 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.[15] As such, the directive is not currently implemented in Germany.
The directive has been implemented in Romania as well. However, Constitutional Court of Romania struck down the transposing acts as violating constitutional rights .[16] The court held that the transposing act violated the constitutional rights of privacy, of confidentiality in communications, and of free speech.[17]
Slovakia has implemented the directive in Act No. 610/2003 Coll. on electronic communications as later amended. Telecommunication data are stored for six months in the case of data related to Internet, Internet email and Internet telephony (art. 59a (6) a)), and for 12 months in the case of other types of communication (art. 59a (6) b)).
On 29 June 2010, the Serbian parliament adopted the Law on Electronic Communications, according to which the operator must keep the data on electronic communications for 12 months. This provision was criticized as unconstitutional by opposition parties and by Ombudsman Saša Janković.[18]
The Australian Government is currently seeking to introduce mandatory data retention [24]
Amazon is known to retain extensive data on customer transactions. Google is also known to retain data on searches, and other transactions. If a company is based in the USA the FBI can obtain access to such information by means of a National Security Letter (NSL). The Electronic Frontier Foundation states that "NSLs are secret subpoenas issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers or ecommerce companies produce records of their customers transactions. The FBI can issue NSLs for information about people who haven't committed any crimes.
NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the controversial USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing." The Washington Post has published a well researched article[25] on the FBI's use of National Security Letters.
It is often argued that data retention was necessary to combat terrorism. However, data retention cannot prevent any terrorist attacks. At best it may, as its proponents claim, assist the police to find the culprits and their accomplices after an attack has already taken place. The authorities in Spain and the United Kingdom have claimed that retained telephony data made a significant contribution to police enquires into the 11 March 2004 Madrid train bombings and the 7 July 2005 London bombings.
The opponents of data retention make the following arguments –
The current directive proposal (see above) would force ISPs to record the internet communications of its users. The basic assumption is that this information can be used to identify with whom someone, whether innocent citizen or terrorist, communicated throughout a specific timespan. Believing that such as mandate would be useful is ignoring that some very committed community of crypto professionals has been preparing for such legislation for decades. Below are some strategies available today to anyone to protect themselves, avoid such traces, and render such expensive and legally dubious logging operations useless.
Several organizations have set up VPNs so their employees can safely access the private data of the company. In this case the only data retained is the connection to the VPN server, that will contain all the data served to the EU citizen encrypted.
The connections, if the company is in the EU, will be recorded as a company access, mixed with all the other employees access. To single out any user, the company would have to be tapped and that the citizen would have to use it after its been tapped. In practice that would mean that data retention would be of the same use that the present tapping legislation, so it presents only a cost with no benefit.
If the company is outside the EU, not even tapping can be done. Google created a public use VPN with their Google WiFi project. While their client software isn't provided by Google anymore, it can still be downloaded in sites like Softpedia. In this situation, any EU citizen can simply download their software and use the Internet without worrying about data retention in the EU.
There are anonymizing proxies that provide slightly more private web access. Proxies must use HTTPS encryption in order to provide any level of protection at all. Unfortunately, proxies require the user to place a large amount of trust in the proxy operator (since they see everything the user does over HTTP), and may be subject to traffic analysis.
Some P2P services, being it file transfer or voice over IP, use other computers to allow communication between computers behind firewalls. This means that trying to follow a call between two citizens might, mistakenly, identify a third citizen unaware of the communication.
For security conscious citizens with some basic technical know-how, tools like I2P - The Anonymous Network, Tor, mixmaster and the cryptography options integrated into any many modern mail clients can be employed. Some maintain that anonymity is impossible online, and will be so in the future, as governments can ultimately shut down sites with relative ease in extreme circumstances. This applies to sites operating, for example, outside U.S. jurisdiction. That P2P sites, or even Wikileaks, remain operational, speaks for the leniency with which the U.S. has pursued closing these sites.
I2P - The Anonymous Network is an international peer-to-peer anonymizing network, which aims at not only evade data retention, but also make spying by other parties impossible. The structure is similar to the one TOR (see next paragraph) uses, but there are substantial differences. It protects better against traffic analysis and offers strong anonymity and for net-internal traffic end-to-end encryption. Due to unidirectional tunnels it is less prone to timing attacks than tor. In I2P several services are available: anonymous browsing, anonymous e-mails, anonymous instant messenger, anonymous filesharing, anonymous hosting of websites.
Tor is a project of the US non-profit Tor Project[29] to develop and improve an onion routing network to shield its users from traffic analysis. Mixmaster is a remailer service that allows anonymous email sending.
JAP is a project very similar to Tor. It is designed to route web requests through several proxies to hide the end users Internet address. Tor support has been included into JAP.
Almost since the beginning of commercial Internet dynamic IP addresses were given out to consumers out of a pool of a set of addresses. Every connection is logged to a central database. When broadband DSL made PPPoE popular one would still be given dynamic IP addresses but disconnecting the session and calling back was now a matter of seconds instead of waiting a minute for an analog modem to retrain. If a large number of computers disconnected and reconnected every minute this would cause a lot of logs to be retained until it becomes uneconomic to retain this data of logins. Web usually still works with this and so does email. In calculation: if 1 million users at an ISP connected and disconnected every minute and did this 24/7 an ISP would need 11 terabytes of storage, for 365 days of retention, if they sign a 4 byte field for logon/logoff time, a 4 byte field for customer number and a 4 byte field for IP address used.
The Arbeitskreis Vorratsdatenspeicherung (German Working Group on Data Retention) is an association of civil rights campaigners, data protection activists and Internet users. The Arbeitskreis coordinates the campaign against the introduction of data retention in Germany [30].
An analysis of federal Crime Agency (BKA) statistics piblished on 27 January 2010 by civil liverties NGO AK Vorrat revealed that data retention did not make a prosecution of serious crime any more effective [31].
As the EU Commission is currently considering changes to the controversial EU data retention directive, a coalition of more than 100 civil liberties, data protection and human rights associations, jurists, trade unions and others are urging the Commission to propose the repeal of the EU requirements regarding data retention in favour of a system of expedited preservation and targeted collection of traffic data‘ [32].
References:
[1] Study on data retention effectiveness [33]. [2] Letter of more than 100 organisations on data retention[34]. [3] Statement by the German Minister of Justice[35]. [4] Statement by the German Secretary of Justice[36].