Background Retention of communications data
8.Communications data is the context not the content of a communication. It can be used to demonstrate who was communicating; when; from where; and with whom. It can include the time and duration of a communication, the number or email address of the originator and recipient, and sometimes the location of the device from which the communication was made. It does not include the content of any communication: for example the text of an email or a conversation on a telephone. Communications data is used by the intelligence and law enforcement agencies during investigations regarding national security and organised and serious crime. It enables investigators to identify members of a criminal network, place them in specific locations at given times and in certain cases to understand the criminality in which they are engaged. Communications data can be vital in a wide range of threat to life investigations, including the investigation of missing persons. Communications data can be used as evidence in court.
9.Telecommunications companies retain communications data for a number of reasons: for business purposes; through voluntary agreement with the Government or through mandatory requirements. Mandatory retention is covered by the 2009 Regulations, which provide for telecommunications companies that have been issued a notice by the Secretary of State to retain the data types specified in the Schedule to the Regulations for a period of 12 months. Part 11 of the Anti-terrorism, Crime and Security Act 2001 provides for data retention through a voluntary code. Under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426), companies are permitted to retain data they need for business purposes. However, once the data is no longer needed for those purposes it must be deleted or made anonymous, unless otherwise required by law.
10.Without mandatory data retention, relevant public authorities would still be able to access data retained under the voluntary code or for business purposes. However, this is not a substitute for the 2009 Regulations. Many companies are not signed up to the voluntary code and certain types of data may only be retained for a matter of days. Much of the data retained for business purposes would be deleted after only a few months, rather than the 12 months required by the 2009 Regulations. A 2012 Association of Chief Police Officers survey demonstrated that many investigations require data that is older than the few months that data may be retained for business purposes, particularly in ongoing investigations into offences such as child abuse and financial crime.
11.On 8 April 2014 the ECJ gave a judgment declaring the Data Retention Directive to be invalid. The Data Retention (EC Directive) Regulations 2007 (S.I. 2007/2199) implemented the Directive in respect of mobile and fixed line telephony. The 2009 Regulations, which revoked and replaced the 2007 Regulations, implemented the Directive with respect to the retention of communications data relating to internet access, internet telephony and internet e-mail as well as mobile and fixed line telephony.
12.This Act provides powers to replace the 2009 Regulations. The judgment of the ECJ raised a number of issues concerning the Data Retention Directive. Many of these were already met by the safeguards within the United Kingdom’s comprehensive data retention and access regime. Nevertheless, where appropriate, the Act adds safeguards while providing for the replacement regulations to add further safeguards in line with the judgment.
13.Specifically, the Act provides a power for the Secretary of State to issue a data retention notice on a telecommunications services provider, requiring them to retain certain data types. The data types are those set out in the Schedule to the 2009 Regulations. No additional categories of data can be retained. The Act provides that the period for which data can be retained can be set at a maximum period not to exceed 12 months, rather than the fixed 12 months in the 2009 Regulations, allowing for retention for shorter periods when appropriate. It provides a power to make regulations setting out further provision on the giving of and contents of notices, safeguards for retained data, enforcement of requirements relating to retained data and the creation of a code of practice in order to provide detailed guidelines for data retention and information about the application of safeguards. The regulations may also provide for the revocation of the 2009 Regulations, and transitional provisions.