The EC Data Retention Directive, which comes into force on 1 October,
requires all providers of electronic communication networks and services to
store traffic and location data for between six months and two
years, to aid the detection and prosecution of serious crime.
However, organisations operating on a pan-European basis are warned that the rules
vary across the continent and they will need to be aware of the requirements of each jurisdiction in which they operate.
Under the directive, communications providers must store necessary data that will help to trace and identify the source, location, destination, date, time, type and duration of a communication.
Fixed-line telephone and mobile logs often form a critical part of evidence in criminal investigations, as was seen in the use of traffic and location data in apprehending the perpetrators of the terrorist attacks in Madrid.
However, there could be confusing times ahead. The directive permits the introduction of retention regimes for internet communications to be introduced at a later date and therefore many member states are not yet
implementing the directive in full, opting to delay until as late as 2009.
This will cause major issues for pan-European service providers as they will have to store different types of data in each country in which they operate.
It appears that little thought has been given to the effect of the directive on operators such as mobile virtual network operators and resellers of fixed and mobile communications. These companies do not have the systems in place for data storage and rely heavily on the underlying network systems.
Implementing the directive could, therefore, see these operators having to implement costly
systems to retain the required data.
While the intention of the directive is admirable, the effectiveness of such measures remains to be seen, particularly due to the major discrepancies across the member states.
Guidance on its implementation and how communications providers can comply has been severely lacking.
Paula Barrett is a partner at international law firm Eversheds.
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