Data Retention

The Eternal Quest for Balance between Crime Prevention, Privacy, and Cost

Data retention has been a tug of war for decades, and the telecommunications industry has become used to being caught in the middle. While national and supranational authorities tasked with law enforcement and public safety strive to enshrine data retention obligations into law, privacy advocates keep fighting, and have found courts favorable to challenges to data retention regimes in many cases.

As electronic communication has become a foundation for the functioning of society, the primary rationale for data retention is to ensure that law enforcement and public safety authorities can access a record of communications to aid the prevention, investigation, or prosecution of serious crime, including terrorism. Proponents argue that access to retained communications data helps identify and locate suspects, reveal linkages to terrorist networks, and provide evidence for judicial proceedings.

Opponents have mounted successful legal challenges, mainly on the grounds of indiscriminate data retention’s incompatibility with privacy rights and the lack of restrictions and safeguards regarding the use of the retained data. Data retention legislation has historically focused on the telecommunications industry and required the latter to store communications traffic and subscriber data without a specific pre-existing requirement to use that data. It tries to impose the retention of data for longer than necessary for service providers’ operational purposes, sometimes extending to failed call attempts, outgoing connections in unlimited pricing plans, IP addresses, email connections, and location. Data retention does not foresee capturing content of communication and is distinct from the concept of lawful interception.

For more than a decade, voice-over-IP (VoIP) and other over-the-top (OTT) providers have steadily increased their presence. Their naming is a reflection of the delivery of communication (or content) services over an infrastructure owned by a third party or just the Internet. Messenger apps such as WhatsApp and Snapchat have seen explosive growth to reach into the billions of monthly users around the world to become a critical component of person-to-person communication.

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White Paper Data Retention 2020

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