Update on how ‘The West’ is backing away from data retention

Data retention – EU experience

Country Retention Period Authorisation required to access “metadata” Status of Telecommunications Data Retention Regime
Australia 2 years No judicial oversight. Data retention bill has been introduced into Parliament.
Austria Ruled Unconstitutional
Belgium Between 1 year and 36 months for ‘publically available’ telephone services.No provision for internet-related data. Access must be authorised by a magistrate or prosecutor. Under challenge
Bulgaria 1 year.Data which has been accessed may be retained for a further 6months on request. Access only possible on the order of the Chairperson of a Regional Court Ruled Unconstitutional
Cyprus 6 months Access must be approved by a prosecutor if he considers it may provide evidence of committing a serious crime.A judge may issue such an order if there is a reasonable suspicion of a serious criminal offence and if the data are likely to be associated with it. Ruled Unconstitutional
Czech Republic Ruled Unconstitutional
Denmark 1 year Access requires judicial authorisation; court orders are granted if application meets strict criteria on suspicion, necessity and proportionality Session logging ceased 2014
Estonia Access requires permission of a preliminary investigation judge in force
Finland 1 year Subscriber data may be accessed by all competent authorities without judicialAuthorisation. Other data requires a court order. Under review after the CJEU judgment in April
Germany 1 year Ruled Unconstitutional.No mandatory data retention.In the new Telecommunication Act enacted in 2012 the provisions on data retention were simply deleted and not replaced by a new data retention concept.
Greece 1 year Access requires judicial decision declaring that investigation by other means isimpossible or extremely difficult. Still in force
France 1 year Police must provide justification for each request for access to retained data and must seek authorisation from person in the Ministry of the Interior designated by the Commission nationale de contrôle des interceptions de sécurité. In force
Spain 1 year Access to the data by the competent national authorities requires prior judicialauthorisation. In force
Hungary 6 months for unsuccessful calls and 1 year for all other data Police and the National Tax and Customs Office require prosecutor’s authorisation. Prosecutor and national security agencies may access such data without a court order Further constitutional challenge is being prepared as of April 2014
Italy 2 years for fixed telephony and mobile telephony data,1 year for internetaccess, internet email and internet telephony data Access requires ‘reasoned order’ issued by the public prosecutor. In force
Lithuania 6 months Authorised public authorities must request retained data in writing.For access for pre-trial investigations a judicial warrant is necessary In force
Latvia 18 months Authorised officers, public prosecutor’s office and courts are required to assess ‘adequacy and relevance’ of request, to record the request and ensure protection of data obtained In force
Luxembourg 6 months Access requires judicial authorisation. Under review.Luxembourgish Justice Minister on the day of the CJEU judgment announced that a detailed analysis of possible consequences for the national law will be undertaken.
Malta 1 year for fixed, mobile and internet telephony data,6 months for internet access and internet email data Requests must be in writing – Malta Police Force; Security Service In force
Netherlands 1 year Access must be by order of a prosecutor or an investigating judge Following CJEU judgment it was reported that various parties in parliament have already stated that the data retention provisions should be abolished completely or in part, and further challenges seem likely.
Romania (6 months under the earlier annulled transposing law) Ruled Unconstitutional (twice)
Poland 2 years Requests must be in writing and in case of police, border guards, tax inspectors, authorised by the senior official in the organisation. Under challenge
Portugal 1 year Transmission of data requires judicial authorisation on grounds that access is crucial to uncover the truth or that evidence would be, in any other manner, impossible or very difficult to obtain. The judicial authorisation is subject to necessity and proportional requirements. in force
Slovenia 8 months for internet related and 14 months for telephony related data Access requires judicial authorisation. Ruled Unconstitutional.Ordered that data collected under the data retention law be deleted
Slovakia 12 months, 6 months for Internet services Requests must be in writing. Ceased following judgment of European Court of Justice.Records deleted.
Sweden 6 months Under Challenge by ISPUp to 2013 CJEU challenged Swedish govt for their delay in implementing the Directive due to domestic controversy
UK 1 year Access permitted, subject to authorisation by a ‘designated person’ and necessity and proportionality test, in specific cases and in circumstances in which disclosure of the data is permitted or required by law. DRIP – Under Challenge
Ireland 2 years for fixed telephony and mobile telephony data, 1 year for internet access, internet email and internet telephony data No.Requests to be in writing. Under Challenge
Switzerland[i] Under Challenge
Norway N/A N/A No mandatory data retention regime

 

  • EU: 11 Member States require judicial authorisation for each request for access to retained data.
  • EU: In 3 Member States judicial authorisation is required in most cases.

Further reading

Collection of resources and commentary on Australia’s data retention bill:

Successful first step in challenging Swiss Data Retention, 2 July 2014, available at: http://sustainability.oriented.systems/challenging-swiss-data-retention/

 European Commission on data retention: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/police-cooperation/data-retention/index_en.htm

Resources relating to communications data retention in the EU: http://wiki.vorratsdatenspeicherung.de/Resources

Evaluation Report on the Data Retention Directive (2011) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0225:FIN:en:PDF

 National legal challenges to the data retention directive: http://eulawanalysis.blogspot.com.au/2014/04/national-legal-challenges-to-data.html

Data retention held unconstitutional in Slovenia: http://www.digitalrights.ie/data-retention-slovenia-unconstitutional/

Boehm & Cole study on data retention after the judgment of the Court of European Justice: http://www.janalbrecht.eu/fileadmin/material/Dokumente/Boehm_Cole_-_Data_Retention_Study_-_June_2014.pdf

Finland must revise its data retention laws: http://www.helsinkitimes.fi/finland/finland-news/domestic/10120-finland-must-revise-its-data-protection-laws.html

In the US:

In Silicon Valley, senator calls for ending American “digital dragnet”: 

Facebook, Google and Apple lobby for curb to NSA surveillance: http://www.theguardian.com/technology/2014/nov/17/facebook-google-apple-lobby-senate-nsa-surveillance

 

Update on how ‘The West’ is backing away from data retention

“Mummy is in hospital and daddy is sick …” An afternoon’s visit to MITA detention centre in Melbourne

Visit to MITA (Melbourne Immigration Transit Accommodation) detention centre Broadmeadows (24 July)

I’ve just now properly digested my mother’s account of one of her regular visits to detention centre located in suburban Melbourne after some travel this past week. It seemed timely to publish this given today’s evidence at the national inquiry into children in immigration detention.

This is a lightly edited version of her letter, published with her permission:

When normal visiting hours started at 2pm there was great sadness, as a stateless Rohingya family from Burma, mother, father and three children, who have not long started school, had that morning been sent back to Christmas Island. They had only recently been reunited with their teenage son after 2 years separation. On Wednesday they had to say goodbye to him as he was sent back to Brisbane.

We also heard that there would be a mass and memorial service at 5pm for the brother of one of the Tamil ASIO rejected men who tragically lost his life in Sri Lanka after much suffering.

Another ASIO rejected Tamil man came to me very upset as the day before he had just received another rejection. I had been seeing him on the last few visits as he asked me if I could give him some clothes for his 9 year old daughter, who is having a birthday soon, and his seven year old son so he could send the clothes to them in Sri Lanka.

We meet two grandmothers. One was to be sent back to Christmas Island the next day.

We had parcels for 8 individuals or families. One was for another large extended family. The father is a very bad diabetic requiring 2 injections daily and is having a lot of problems with his eye sight.

Another parcel was for a family where the mother is extremely depressed. There is the husband and 2 young children.

One parcel was for a 19 year old young lady who was born in Afghanistan but grew up in Pakistan. This beautiful young women arrived in Australia by plane 18mths ago seeking asylum. She spent 6 months in Maribynong and has now been in MITA for 12 months. She has seen over a thousand people come and go in that time and is very depressed.

We also had a parcel for an Iranian family, mother, father and 5 year old son. The mother suffers from severe depression and has spent time in hospital. She told me last week that it was her birthday on the 26th and also asked for clothes for the family. They were given clothing and a cake to celebrate her birthday. The husband was very grateful, saying it made his wife happy. She didn’t feel well enough to come to the visitors centre.

An Iranian man that I have assisted with clothing came and said hello. He is still waiting to have surgery on his knee that was damaged in the February riots on Manus Island.

Two mothers, sisters, both with 2 young children were bought in to meet us. They came from Christmas Island at the end of last week. They are suffering from severe depression. It became very emotional when one of the mothers showed me her arms. Both arms showed the scars of over thirty burn marks. She said to me, “all we want is freedom.” “Christmas Island is very bad.” I told her that we do not like what our government is doing. They told us they had a brother on Christmas Island but they rarely saw him because he was in another compound.

Another mother who we have assisted a number of times came to me very concerned about her 4 years old daughter who suffers from epilepsy, and having fits almost every day. She is also concerned that her daughter is very underweight and doesn’t like the food. When I first met the mother about 6 months ago she told me that she and her daughter had been sent to Perth for her daughter’s treatment. They were there for 2 months. During this time her husband and older son where left back on Christmas Island. They were reunited in MITA shortly after the mother and daughter arrived.

An 8 year old girl came up to me and said to me, “mummy is in hospital and daddy is sick.” We have assisted and met with this family many times. The mother is in hospital on suicide watch. Her 8 months old son is with her at the hospital. It is not her first visit to hospital. When the mother was around 6 months pregnant she was sent to Darwin to wait for the birth of the baby. Her husband, son and daughter remained on Christmas Island, affecting everyone’s mental health.

Another mother came and proudly showed us her little 2 weeks old daughter. We had supplied clothing for the baby and the whole family.

At 5pm we went into memorial service for the young Tamil man. This was held in a class room next to the visitors centre. It was a very moving and emotional ceremony. A Tamil priest co-celebrated the mass with Fr Peter. The Tamil priest personal knew the young man. The gospel was read in English, Italian, Arabic and Tamil.

“Mummy is in hospital and daddy is sick …” An afternoon’s visit to MITA detention centre in Melbourne

MsLods’ news round-up: law + technology

Copyright

Modernising (Irish) Copyright: fair use, Irish-style. | The IPKat | http://bit.ly/1dchnD3

Copyright reform is in the air. | Project DisCo | http://bit.ly/1gAvir3 featuring The Creationistas: http://www.creationistas.com/

The New York Times endorsed a secretive trade agreement that the public can’t read. | Washington Post | http://wapo.st/1dVHVto

Rights issue forces last minute change at the Malthouse. | Performing ArtsHub | http://bit.ly/17gpbje

Defamation & media law

Today Tonight agrees not to show ambush footage of Simon Gittany. | SMH | http://bit.ly/1iWd5kF

Privacy & security

Australian authorities clock 50% success rate in Apple data requests. | ZDNet | http://zd.net/1aMmiNm

Google is ordered to block images in privacy case. | New York Times | http://nyti.ms/1dceS3E

Russian Internet Surveillance: meet the new boss, same as the old boss. | Global Voices Advocacy | http://bit.ly/17M0Ojk

Yes, there actually is a huge difference between government and corporate surveillance. | The Washington Post |  http://wapo.st/1bibaml

Queensland Justice accidentally discloses sensitive data. | iTnews | http://bit.ly/HKbram

Technology

You can see a sunset from space. | The Atlantic | http://bit.ly/16SlinH

Painting the big picture in cancer care. | Canberra Times | http://bit.ly/1a g49ES

From Walmart to Bitcoin: The CEO behind the Chinese exchange sending BTC to new highs. | Forbes | http://onforb.es/1ag3WkZ

I Loved You, Blockbuster: Alexis C. Madrigal. | The Atlantic | http://bit.ly/16SjT0h

Telecommunications           

What future for Australia’s National Broadband Network? | Computerworld |  http://bit.ly/1ezi39h

NBN Co brings in another Telstra exec. | iTnews | http://bit.ly/1ftdn2w

Trade marks & brand protection

A decades-long rivalry between ‘Patsy’s’ restaurants heats up. | NY Daily News | http://nydn.us/1biV1jU

Rock’n’roll and a hard place: Can Kelly Van Halen register her name as a trade mark?  | The IPKat | http://bit.ly/1gAtOwQ

Social media

Doge is an actually good internet meme. Wow. | Gawker | http://bit.ly/HO7Ubp

Time to turn Twitter’s hashtags into cash bags. | AFR | http://bit.ly/1cLGlNl

The hidden technology that makes Twitter huge. | Businessweek | http://buswk.co/1hXDTDi

 

10 November 2013

MsLods’ news round-up: law + technology

MsLods’ news round-up: law + technology

Copyright

Singapore Government to consult on role of website blocking in fighting online copyright infringement. | Out-Law |  http://bit.ly/1ckeune

We are all creators now: collections, creation and copyright. Free public event, Powerhouse Museum, Sydney: https://weareallcreatorsnow-estw.eventbrite.com.au/

Study shows that hip hop sampling boosts sales of the songs sampled. | Forbes | http://onforb.es/1gRV2A9

Creative Commons endorses ‘ongoing efforts to reform copyright law’. | InfoJustice |  http://onforb.es/HmTAGE

Defamation & media law

Lord McAlpine settles defamation action with Alan Davies over Twitter comment. | The Guardian |  http://bit.ly/HmTDSL

Cathy Gellis wins pro bono victory against UK defamation subpoena. | Popehat | http://bit.ly/1awInNI

Why journalists need the Open Government Partnership to help them. | The Guardian | http://bit.ly/HmTyP3

Privacy & security

Medical start-up invited millions of patients to write reviews they may not realise are public. | Forbes | http://onforb.es/HmTAGE

Keeping teens ‘private’ on Facebook won’t protect them. | TIME | http://ti.me/1awIn09

NSA monitored calls of 35 world leaders after US official handed over contacts. | The Guardian | http://bit.ly/18Y5vV4

LinkedIn ‘Intro’duces insecurity. | Bishop Fox | http://bit.ly/16BYFG5

Technology

NASA shoots lasers at the moon to create insanely fast Internet. | Wired Science | http://wrd.cm/16DJ7wc

How Sony is turning into a ghost in Japan and around the world. | Kotaku | http://bit.ly/17Rqo0i

Telecommunications           

Landline complaints surge, NBN nearly fault free:  TIO. | ZDNet | http://zd.net/1a8fq6v

iiNet sees domestic capacity as new ISP ‘choke point’. | IT News | http://bit.ly/1ap7Uqa

NBN Co picks ‘turnaround experts’ for company review. | ZDNet | http://zd.net/18Y7Oat

Trade marks & brand protection

What happened when Ryanair boss Michael O’Leary went on Twitter for live Q&A? He crash-landed spectacularly. | The Independent | http://ind.pn/1c8D6LI

Thai coffee stall vows to fight Starbucks logo lawsuit. | The Guardian | http://bit.ly/1ilJAbJ 

Social media

White House national security staffer fired for Twitter postings under alias. | The Washington Post  | http://wapo.st/HafiwD

Justice opens up to social media. | The Age |  http://bit.ly/HafhJh

Yes, Twitter is flawed during an event like the Boston bombings — and so is everything else. | Giga OM | http://bit.ly/1ckewf2

27 October 2013

MsLods’ news round-up: law + technology

MsLods’ news round-up > law and technology

MSLODS’ ROUND-UP  – Technology, Intellectual Property & Media Law

Copyright

Harvard law professor, Lawrence Lessig sues Australian record company over Phoenix’s “Lisztomania”. | The Boston Globe |  http://b.globe.com/14ifuiK

No Coalition policy on data retention, copyright infringement. | ZDNet | http://zd.net/17daTyl

The CopyKat – your weekend copyright catchup. | The 1709 Blog | http://bit.ly/1dxIN9t

New research by Ericsson showing reduction in file sharing, especially in the US. | Ericsson TV & Media Lab Report 2013 | http://bit.ly/15Lu31L

White House copyright czar jumps to industry anti-piracy group. | Wired | http://bit.ly/15i5uWS

Defamation & media law

Social media risks and rewards – @journlaw’s public lecture. | journlaw | http://bit.ly/1frGi55

Privacy & security

Draft Australian Privacy Principles Guidelines released for consultation. Comment period closes 20 September 2013. | OAIC | http://bit.ly/14ifIX6

‘Baby Monitor Hack’ could happen to 40,000 other Foscam users. | Forbes | http://onforb.es/15q4mGJ

Melbourne IT breach highlights need for security culture. | ZDNet | http://zd.net/18uIt4d

Technology

Twitter and Facebook’s global impact as told through which governments want their data. |  Quartz | http://bit.ly/15q4qXd

A data broker offers a peak behind the curtain. | New York Times | http://nyti.ms/17z9zvV

Telecommunications           

NBN Co reins in rollout transparency. | IT News |  http://bit.ly/19XH4X0

Trade marks & brand protection

Apple hoping to trade mark the term ‘STARTUP’. | ™Watch | http://bit.ly/17z8XpT

Social media

Workplace clashes involving social media. | Law Report – ABC Radio National | http://bit.ly/1frGkKp

Australian government makes frequent requests for Facebook user data. | IT News | http://bit.ly/17dbwYw

Turning a “No Comment” company into a social media advocate. | MIT Sloan Management Review | http://bit.ly/130dAWp

Twitter General Counsel steps down as company prepares to go public. | New York Times | http://nyti.ms/199txdW

1 September 2013

MsLods’ news round-up > law and technology

MsLods’ news round-up -> law and technology

Copyright

TV gets mobile as IceTV plans digital recorder with mobile streaming. | SMH | http://bit.ly/15WybvG

First submissions responding to the ALRC’s Discussion Paper on Copyright now online.  | ALRC | http://bit.ly/UWuIJM Submissions due 31 July 2013

New Zealand delays review of Copyright Act until Trans Pacific Partnership negotiations are completed. | MED | http://bit.ly/1aB7TAd

Sony Pictures wins ‘Midnight in Paris’ lawsuit over Faulkner quote. | The Hollywood Reporter | http://bit.ly/17uIpTc

Defamation & media law

Shield laws might not protect bloggers and citizen journalists. | Journlaw | http://bit.ly/13QnT2f

Privacy & security

The only Utah ISP (and one of the few in the US) standing up for user privacy. | Ars Technica | http://ars.to/17uGnCE

Unitarian church, gun groups join EFF to sue NSA over illegal surveillance. | EFF | http://bit.ly/15Wyjvp

Privacy International files legal challenge against UK government over mass surveillance programs. | Privacy International | http://bit.ly/12Y7qSz

Technology

PayPal apologises for giving Pennsylvania man $92 Quadrillion. | Gawker | http://bit.ly/17uFCcG

The Road to Resilience: How unscientific innovation saved Marlin Steel. | Fast Company | http://bit.ly/15WxUZF

Telecommunications

Telstra’s Adam Internet deal in limbo. | AFR | http://bit.ly/19b33f4

#Unplug: Baratunde Thurston left the Internet for 25 days. | Fast Company | http://bit.ly/128viJc

Trade marks & brand protection

A Derry record-store owner came up with a novel solution, after running into some hassle with HMV. | The Journal | http://bit.ly/128wigm

Social media

IAB Australia releases new social media comment moderation guidelines. | Mumbrella | http://bit.ly/13WgWNf

Tips to make sure social media snooping doesn’t wreck your working life. | Maurice Blackburn | http://bit.ly/1b3Vb0I

LinkedIn top social media platform for ASX 200 companies. And 22% of companies don’t use any social media. | BRW | http://bit.ly/1aB6t93

Note: I’ll be back with my weekly news round-ups at the end of August.  I’ll be in Europe for the next month – 22 July – 22 August – Helsinki, Stockholm, Oslo, Copenhagen, Bruges, Zurich, Vienna, Budapest & Rome. Travel tips most welcome.

21 July 2013

MsLods’ news round-up -> law and technology

MsLods’ news round-up -> law and technology

MSLODS’ ROUND-UP  ~ Technology, Intellectual Property & Media Law

Copyright

Are fan translations an infringement of copyright? | TechnoLlama | http://bit.ly/15t9JQ7

The Copycat – a heady mix of gorillas, monsters, social media and books! | The 1709 Blog | http://bit.ly/15cwybc

Less than 3 weeks left to get submissions into the Australian Law Reform Commission Copyright & the Digital Economy Inquiry. | ALRC | http://bit.ly/17vB0qY

Defamation & media law

Twitter yields to pressure in hate case in France. | New York Times | http://nyti.ms/12Apn9A

In a legal victory for Wikipedia, the Wikimedia Foundation wins lawsuit brought by former Berlusconi advisor. | Wikimedia blog | http://bit.ly/18ejJ2n

Privacy & security

Microsoft sucked into ever-growing NSA vortex: who’s next? | ZDNet | http://zd.net/18ho1cU

Thurgood Marshall’s prescient warning: His dissent in a 1989 case stated that “today’s decision will reduce the privacy all citizens may enjoy.” And so it has. | The Atlantic | http://bit.ly/18VDQ8p

Edward Snowden reveals Australia’s links to secret US spy program. | The Age | http://bit.ly/15thXYE

Technology

Estonia’s technology cluster: Not only Skype. | The Economist | http://econ.st/18VBiac

The Man who predicted Google Glass forecasts the near future: All Tech Considered. | NPR | http://n.pr/13IoFhH

US agency baffled by modern technology, destroys mice to get rid of viruses. | Ars Technica | http://ars.to/12pkzox

Barrett Brown, political prisoner of the information revolution. | Guardian | http://bit.ly/16BJ8zK

Telecommunications

The ACCC commences a review of Domestic Transmission Capacity Service (backhaul) and six fixed line services. | The ACCC |   http://bit.ly/12pkKAe

Victorian local council seeks access to private telecommunications data to enforce minor offences. | The Age | http://bit.ly/13fLSQV

Trade marks & brand protection

Will I am: Pharrell Williams and Will.i.am in trade mark dispute. | Isgoode | http://bit.ly/1alsdWj

Specsavers and OPSM in new legal stoush. | BRW | http://bit.ly/13aFWgr

Social media and the twenty-hour hour business. | Paul Wallbank | http://bit.ly/13fMNko

Social media

“Technology triumphed over conservatism.”  Law Report Radio National on judges, the legal system and social media. | ABC | http://bit.ly/10Ui7sH

Bank Of America’s Twitter account is one really dumb robot. | Gizmodo Australia | http://bit.ly/12xHbXm

Opinion: No Twitter marketing ‘revolution’ yet. | Australian Financial Review | http://bit.ly/15thJRe

Reddit: A pre-Facebook community in a post-Facebook world. | The Atlantic | http://bit.ly/15EXGSb

~~~~~~

14 July 2013

MsLods’ news round-up -> law and technology