Telecommunications Data Retention

In the field of telecommunications, data retention generally refers to the storage of call detail records (CDR's) of telephony and internet traffic and transaction data by governments and commercial organizations. 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 analyzing the retained data governments can identify the locations of individuals, an individual's associates and the members of a group such as political opponents.

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 organizations.

Data retention in the European Union

The United Kingdom, France, Ireland and Sweden are attempting to persuade the European Union to introduce a directive which would make data retention mandatory throughout the EU. It appears that the IFPI and the MPA (representatives of the music and film industries) are active in promoting data retention, as well as certain UK MEPs.

An attempt to introduce a far reaching data retention directive through the Justice and Home Affairs Committee of the Council of Ministers has been defeated, but the directive proposal has returned under the co-decision procedure, meaning that the current UK-presidency is trying to get the European Parliament to agree on something that the Council would not.

The responsible Committee of the European Parliament is Civil Liberties, Justice and Home Affairs (LIBE).

The Directive suggests to retain for one year the following categories of data:

• data necessary to trace and identify the source of a communication;
• data necessary to trace and identify the destination of a communication;
• data necessary to identify the date, time and duration of a communication;
• data necessary to identify the type of communication;
• data necessary to identify the communication device;
• data necessary to identify the location of mobile communication equipment.

There are currently only two countries in the EU with legal data retention actually in force. Italy retains data for four years and Ireland for three years. The UK has an extensive system of data retention, but it has not yet been placed on a statutory basis. Belgium has re-introduced the possibility of data retention on 13 June 2005 with a new telecommunication law, but the royal decree stipulating what kind of data should be stored, by which market parties and for what period of time was never issued.

Data retention in the United Kingdom

The United Kingdom [UK] 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 2 of the Anti-Terrorism, Crime &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.

UK Home Office Voluntary Code of Practice on Data Retention

Subscriber Information retention period is 12 months

Subscriber details relating to the person e.g. name, date of birth, installation and billing address, payment methods, account/credit card details Contact information (information held about the subscriber but not verified by the CSP) e.g. Telephone number, email address identity of services subscribed to (information determined by the communication service provider) Customer reference/account number, list of services subscribed to Telephony: telephone number(s), IMEI, IMSI(s) Email: email address(es), IP at registration Instant messaging: Internet Message Handle, IP at registration ISP - dial-in: Log-in, CLI at registration (if kept) ISP - always-on: Unique identifiers, MAC address (if kept), ADSL end points, IP tunnel address

Telephony Data - retention period 12 months All numbers (or other identifiers e.g. name@bt) associated with call (e.g. physical/presentational/network Assigned CLI, DNI, IMSI, IMEI, exchange/divert numbers) Date and time of start of call Duration of call/date and time of end of call Type of call (if available) Location data at start and/or end of call, in form of lat/long reference. Cell site data from time cell ceases to be used. IMSI/MSISDN/IMEI mappings. For GPRS &3G, date and time of connection, IMSI, IP address assigned. Mobile data exchanged with foreign operators; IMSI &MSISDN, sets of GSM triples, sets of 3G 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.

1. The capability to record to the content of selected conversations.
2. The capability to determine the location of a mobile telephone to within a few yards by using triangulation and multiple base stations.
3. The capability to remotely activate the microphones of some mobile telephones. The UK Financial Times of the 2nd August 2005 [page 4 of the UK edition] reported that the UK police can ask mobile phone operators to download special spying software to a mobile telephone without the user's knowledge or permission. When this has been done the authorities can turn on the microphone of a mobile telephone and listen to any conversations in its vicinity. This capability only exists for mobile telephones which can accept downloaded software. The telephone must be turned on for the microphone to be activated, but the user does not have to be making a call.

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).

Retention of other data [UK]

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 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 with other data held by the government and watchlists from the police and security services.

Access to retained data [UK]

The bodies which are able to access retained data in the United Kingdom are listed in the Regulation of Investigatory Powers Act 2000 (RIPA). These are:

• Police forces (as defined in section 81(1) of RIPA)
• National Criminal Intelligence Service
• National Crime Squad
• HM Customs and Excise
• Inland Revenue
• Security Service
• Secret Intelligence Service
• Government Communications Headquarters

Reasons for accessing retained data [UK]

The justifications for accessing retained data in the United Kingdom are set out in the Regulation of Investigatory Powers Act 2000 (RIPA]. They are:

• in the interests of national security;
• for the purpose of preventing or detecting crime or of preventing disorder;
• in the interests of the economic well-being of the United Kingdom;
• in the interests of public safety;
• for the purpose of protecting public health;
• for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;
• for the purpose, in an emergency, of preventing death or injury or any damage to a person's physical or mental health, or of mitigating any injury or damage to a person's physical or mental health;
• for any purpose (not falling into the above) which is specified for the purposes of this subsection by an order made by the Secretary of State.

Data retention in Italy

In July 2005 new legal requirements 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 must identify them selves 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 anonymise or delete traffic data when they no longer need it to process the communication or to send bills (with a maximum of 6 months). The traffic data which will now be retained can be used for anti-terrorism purposes and for general penal enforcement of criminal offences.

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.