Commentary on Sections Overview
257.Part 11 sets up a structure within which the Secretary of State can issue a code of
	practice relating to the retention of communications data by communications service providers, such as telephone and internet companies. Communications data is data relating to telephone, Internet and postal communications which does not include the substance of the communications itself.
258.The Telecommunications (Data Protection and Privacy) Regulations 1999 regulate the retention of such data by communication service providers providing that such data can only be retained for certain specific purposes. Otherwise it must be erased or made anonymous. Communications data can be a useful tool for law enforcement agencies and if held by a communications service provider is accessible by a public authority under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000. However, whilst the Regulations permit the retention of communications data on national security and crime prevention grounds, they do not give any general guidance as to when these might apply. Accordingly, before these provisions were introduced communications service providers did not have a clear lawful basis for retaining communications data beyond the period for which it was required for their own business purposes.
259.Part 11 establishes a structure to regulate the continued retention of such data on national security and crime related to national security grounds so that it may then be accessed by public authorities under the Regulation of Investigatory Powers Act 2000. Under section 102 the Secretary of State can issue a voluntary code of practice which will provide a basis for retention of communications data. Section 104 provides that if the voluntary scheme proves ineffective the Secretary of State may by affirmative order be authorised to impose mandatory retention directions on communications service providers. Section 105 provides that the power to invoke the mandatory scheme in section 104 will itself lapse unless renewed by affirmative order.