Leaked report on Data Retention Directive shows fundamental flaws
Under Article 14 of the Data Retention Directive the Commission must produce a public evaluation of the application of the Directive before 15 September 2010. A draft version of that document has now been leaked (along with the Irish Government’s submission) and makes for very interesting reading.
Karlin Lillington has an excellent summary in today’s Irish Times, and here are some of the highlights:
Ireland is one of the countries accessing private information the most:
THE GARDA made more requests for phone-call traffic data in 2008 than police in Germany, which has 20 times the population of the Republic.
According to a leaked draft of a European Commission report, gardaí made more than 14,000 access requests for call data in 2008, a rate about 40 per cent higher than had been previously assumed by data privacy advocates, who had based an estimate of 10,000 on figures provided in the past by gardaí to the Office of the Data Protection Commissioner.
Older data is very seldom accessed:
According to the report, the vast majority of data requests across the EU – 85 per cent – are made when the data is less than seven months old, with the bulk of requests, 70 per cent, filed for data held for less than three months.
Statistics gathered from member states “support the conclusion that the relevance of data decreases significantly” with age, the report says.
The report found no concrete evidence from any state to support longer retention periods. “No objective elements were found that could support the choice of the retention period: neither the prevalence of certain forms of crime, the geography of the [member state], or (in-)efficiencies of a law enforcement organisation seem to support the choice,” it says.
The report shows there are very few requests within any state, including Ireland, for data after 12 months. Only 109 requests in aggregate from eight EU countries including Ireland were made in 2008 for mobile data held longer than 18 months. Only 39 total requests from the same eight countries were made for fixed-line call data stored longer than 18 months.
Fears of function creep have been borne out, and data retention is being used for matters such as filesharing cases:
It also notes that many member states have implemented the EU data retention directive by widening its scope and retaining data that was not retained in the past, often allowing it to be used for more purposes than outlined in the directive, such as for civil litigation on copyright in the UK. Such expansion is referred to as “mission creep” by privacy advocates.
Irish companies will be at a competitive disadvantage due to data retention:
The report says some respondents feel that in states with lengthy retention periods, private industry is at a competitive disadvantage because of the burden and costs that retention may impose directly or indirectly.
Several network operators said the need to invest in retention infrastructure had caused them to delay or abandon improvements to national networks.
Deutsche Telekom claimed it had spent €5.2 million on implementation of retention infrastructure and €3.7 million a year to facilitate about 13,000 call data requests and 6,500 internet data requests. Other operators said they had spent in excess of €4 million setting up systems for providing access to stored data.
As predicted, prepay SIM cards have made data retention measures ineffective and have led to Member States – including Ireland – attempting to ban their use:
In the Government’s response to a questionnaire on the State’s implementation of data retention, the Department of Justice noted it was considering ways to identify users of pre-paid SIM cards, an issue which was raised by several states.
In addition to these points, the full document is full of more damning details. For example, not one Member State provided any statistical information demonstrating that data retention was of use in any significant number of cases (p.7), while it’s clear from responses that the Directive – which was sold as a harmonisation measure – has completely failed to achieve this (p.8). Similarly, national data protection authorities have pointed out that they often lack proper powers to supervise data retention and that telecommunications companies often lack proper security over customer data (pp.9-10).