Telecommunications data retention

Data retention in the United Kingdom

The United Kingdom has a system of voluntary data retention which derives from the Anti-Terrorism, Crime & Security Act 2001. Telephone operators and Internet Service Providers retain some data [see below] under a voluntary arrangement with the UK Home Office.

Part II of the Anti-Terrorism, Crime & Security Act 2001 [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, the Telecommunications (Data Protection and Privacy) Regulations 1999 and the EU Directive on Privacy and Electronic Communications 2002. 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 II 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 of 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 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.

Requirements of the UK Home Office Voluntary Code of Practice of Data Retention

Subscriber Information - retention period 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 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.

Postal data 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

Access to retained data The bodies which are able to access retained data 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

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.

Arguments on data retention

It is often argued that data retention is necessary to combat terrorism. It is not necessarily claimed that data retention would prevent terrorist attacks; rather that it would assist the police to find the culprits and their accomplices after attacks had taken place.

The opponents of data retention make the following arguments –

1. Schemes for data retention do not make adequate provisions for independent judicial oversight of the process.
2. That data retention is an invasion of privacy and a disproportionate response to the threat of terrorism.
3. That it will be easy for terrorists to avoid having their communications recorded. The Home Office Voluntary Code of Practice of Data Retention admits that there are some internet protocols which cannot be effectively monitored. It would be possible for terrorists to avoid monitoring by using peer to peer technologies, internet cafes, anonymous proxies or several other methods. The police forces of the EU are sceptical about the value of data retention. Heinz Kiefer, president of Eurocop [European Confederation of Police] issued a press statement saying "it remains easy for criminals to avoid detection through fairly simple means, for example mobile phone cards can be purchased from foreign providers and frequently switched. The result would be that a vast effort is made with little more effect on criminals and terrorists than to slightly irritate them. Activities like these are unlikely to boost citizens’ confidence in the EU’s ability to deliver solutions to their demand for protection against serious crime and terrorism.’
4. The hardware and software required to store all the retained data will be costly.
5. Data retention gives excessive power to the state to monitor the lives of individual citizens.
6. Data retention may be abused by the police to monitor the activities of any group which may come into conflict with the state; including ones which are engaged in legitimate protests. The UK police have used anti terrorism powers against groups opposed to the war in Iraq and protestors at an arms fair. The definition or terrorism in the UK Terrorism Act 2000 includes not only action, but the treat of action, involving serious violence against a person, or serious damage to property, for the purposes of advancing a "political, religious or ideological cause". There is concern that the definition is vaguely worded and could be applied supporters of animal liberation, anti-war demonstrators and others.