Bitkom research: no grounds for data retention

By EDRi · December 15, 2004

Extensive research commissioned by BITKOM, the German industry association for information technology, telecommunications and new media, into the current practices in the telecom sector shows that there are no grounds for the proposed regime of mandatory traffic data retention. The study compares the legal obligations and practices in Austria, France, Italy, the Netherlands, Sweden, Spain, the UK and the US. The main two conclusions are that the EU proposal to store all traffic data for a period of at least 12 months is disproportional, and that there is no evidence that law enforcement needs data older than 3 months.

Few countries have a legal obligation to store traffic data for purposes of law enforcement and national security. None of the examined countries have an obligation to store ‘all traffic data’. In the USA there is no legal obligation at all for mandatory data retention. The US authorities believe data preservation of individual suspects is adequate. Some attempts to introduce data retention were dismissed by Congress as too far reaching. In the UK, Sweden and Austria there is no obligation to store traffic data. In France, Italy and Spain general framework legislation was introduced, but not yet translated into a specific list of data. In Italy the retention period of 2 years only applies to telephony (fixed and mobile). In the Netherlands, there is only a specific obligation for operators of prepaid mobile phones to store location data for a period of 3 months.

The range of the planned EU-wide data retention goes far beyond the data stored so far by telecommunication companies for business purposes, writes BITKOM. Storage takes place mainly for accounting purposes and for the supply of services. Because of privacy and security legislation, companies would not have the possibility to use the data profitably for their own purposes. Data retention would therefore exclusively serve non-business purposes, with according high costs.

BITKOM has not been able to detect any systematic study into the effectiveness of mandatory data retention. They conclude the need is doubtful. The few existing statistics show that traffic data older than 3-6 months are hardly requested by law enforcement agencies. Any obligation to store data beyond the present practices is thus hard to justify.

Most countries offer some cost remuneration regulation. To prevent disadvantages in the international competition for enterprises in individual member states, BITKOM suggests the EU should also include a rule for comprehensive reimbursement of costs, which also takes investments into account.

BITKOM also refers to the massive protest from data protection authorities and civil right organisations, and the critical conclusions from the open workshop organised by the European Commission (see EDRI-gram 2.18). The recommendations from the European Commission are still not available, but the ministers of Justice and Home Affairs have already taken the proposal a step further to include all traffic data (see next article).

Summary BITKOM research (in German, October 2004)

Complete BITKOM research (in German, October 2004) )

Revision 1 14190/1/04, Dutch Presidency to the Article 36 Committee (08.11.2004) )

EDRI-gram 2.18, Brussels workshop on telecom data retention (22.09.2004) )

EDRI-gram 2.23, Data retention in EU JHA Council (02.12.2004) )