Winston Maxwell, a partner in Hogan Lovells’ Paris Office prepared this entry.
On July 13, 2010 the EU’s Article 29 Data Protection Working Party adopted a report (http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2010/wp172_en.pdf ) describing how ISPs and telecom carriers retain traffic data for law enforcement purposes in Europe. The European Data Retention Directive 2006/24/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006L0024:EN:HTML) was supposed to harmonize national laws on data retention. But according to the working party’s report, harmonization is seriously flawed in a number of respects.
The report confirms what we have heard from a number of our communications clients: each Member State has slightly different rules for retaining traffic data for law enforcement purposes, particularly when it comes to IP-based communications. The duration for retaining the data are different from country to country, and the kind of data to be retained are in many cases different. For a pan-European communications providers, this creates a real headache, because specific procedures and systems have to be created for each Member State where the communications provider does business.
The Article 29 working party comes at this from the angle of protecting European citizens, and complains that the lack of harmonization creates different levels of protection of personal data between different Member States, defeating the Data Retention Directive’s objective of harmonization. In this particular case, however, the interests of communications providers and EU citizens converge, because different rules on data retention create additional costs for communications providers, as well as different risks for citizens. The directive currently allows Member States to apply data retention periods of between 6 and 24 months. Several of the large EU Member States have chosen a period of 12 months, and the Article 29 working party recommends that the directive be amended to impose a single harmonized period instead of giving Member States a choice.
The legislation of Member States is fairly consistent regarding the kind of data to be retained for traditional voice communications, but for IP-based communications the practices vary. On this point, the Article 29 working party emphasizes that the only data that Member States can require service providers to retain are those listed in Article 5 of the Directive. In particular, the destination IP address and the URLs of web sites cannot be retained, because those data provide information on the content of the communication, which is prohibited. The working party deplores that many operators do not apply automatic erasure procedures at the end of the legally mandated retention period, and that many operators do not conduct security audits. Finally, the report complains that Member States have different definitions of what a “serious crime” is that would justify the communication of data to law enforcement personnel. The report recommends harmonization on this point too.
Although not specifically mentioned by the working party, the question of whether illegal downloading of copyrighted material is a “serious crime” is obviously a key issue, because several European countries are putting into place graduated response mechanisms that rely on the ISP communicating traffic data to a court or administrative body for the purpose of identifying the alleged infringer. On that front, BT and Talk Talk have lodged a complaint in the UK claiming that the Digital Economy Act, which allows OFCOM to send warning letters to individual infringers, violates fundamental privacy laws http://www.guardian.co.uk/technology/2010/jul/08/bt-talktalk-challenge-digital-economy-act .
Some courts are also questioning the constitutionality of national data retention laws enacted to transpose the Data Retention Directive. Last March, the German Supreme Court held that the implementation of a German law on data retention violated fundamental privacy rights, and ordered that the application of the law be suspended until such time as the government narrows its scope http://news.cnet.com/8301-13578_3-10462117-38.html .