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The Warsaw Voice » Law » November 5, 2008
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Changes in Data Retention Regulations Imminent
November 5, 2008   
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In 2006 the issue of data retention in the telecommunications sector, i.e., the storage of specific data required by authorized bodies to perform their tasks and duties relating to national defense, state security and public safety and order, was regulated at the EU level with the adoption of Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communication networks (the "Directive").

The Polish Telecommunications Act is not fully compatible with the Directive and has to be adapted accordingly. Legislative works aimed at implementing the Directive have been ongoing for some time now. It is thus to be expected that telecommunications undertakings will soon be faced with the need to adapt their operations to the new data retention rules. At this stage it is hard to predict with certainty the changes in these rules, but some of them will no doubt be significant.

The Directive was intended to reconcile the proponents and opponents of data retention. One reason underlying it was the desire to robustly combat new threats posed by criminals, especially terrorists. As shown by the use of retained data to detect perpetrators of terrorist attacks, retention can produce positive results in certain circumstances despite the objections that it may lead to unauthorized use. The statement contained in the Directive that data retention is intended to facilitate access to data that may be useful in the prevention, investigation, detection and prosecution of serious crime appears to be of key importance when interpreting the Directive itself and the direction of proposed changes in the legal systems of member states.

There is also another, economic aspect to the unification of data retention rules at the European level. The introduction of a single set of rules for data storage by telecommunications undertakings is another significant step towards eliminating barriers in the cross-border provision of telecommunication services. The absence of uniform rules on data retention breeds uncertainty as to statutory requirements among telecom businesses looking to start up operations in other member states. This may lead to additional costs, e.g. relating to modifying software to make it compliant with local needs. Do remember that obligatory data retention is carried out at the business' expense.

The current Telecommunications Act requires providers of publicly available electronic communications services and operators of public communication networks to store 'transmission data,' i.e. data processed in order to transmit information over telecommunications networks or to bill users of telecommunication services, including location data. Implementation of the Directive will involve amendment of the Telecommunications Act, modifying the subject-matter scope of data retention. Transmission data will be replaced with a detailed list of categories and types of data to be retained. The listed data will be stored for two years (the Directive sets a retention period of six months to two years). The former option to render the retained data anonymous will cease to exist, but all data will have to be deleted at the end of the retention period.

Importantly for service providers and operators, they will be required to deliver a report to the President of the Office of Electronic Communications (UKE) containing statistics relating to the retention of data and the use of data subject to retention. The Directive requires member states to provide the Commission on a yearly basis with statistics on retained data. The statistics (with no personal data) must indicate the cases in which the information was provided to the competent authorities, the time elapsed between the date on which the data was retained and the date on which the competent authority requested the transmission of the data, and cases where requests for data could not be met. The Office of Electronic Communication will be preparing the statistics for the Commission based on the statistics provided by telecommunications businesses in fulfillment of their data retention duties.

Małgorzata Darowska
Piotr Dmyterko
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