Category: Data Retention

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The EU Data Retention Directive Trashed by the EU Court of Justice

Today the Europan Court of Justice has declared invalid the Data Retention Directive that forced ISP’s to retain some traffic data to be made available for the law enforcement agencies. Though the decision is immediately effective, until the local parliaments don’t update the concerned internal regulations, as crazy as it may sounds, ? the data-retention is still a legal obligation to be fulfilled.

It would be of great help if the local data protection authorities would issue a statement saying that they will not enforce anymore their own controls on data-retention, since any activity in this direction could be challenged on the ECJ decision.

A final remark: how is it possible that the data-protection authorities all over Europe didn’t spot the “little”, “tiny” problem of the Data Retention Directive?

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Friday Night (Data Retention) Fever

Here is a real case that happened just a couple of days ago, while helping an ISP to find a way to handle the deletion of data after the mandatory term imposed by the Eu Data Retention Directive expires. Whatever the solution, thank to the rigidity of the provisions, a law will not be obeyed.

Background:

  •  ? The automatic processing of the data-deletion is usually made so that a script matches daily the data-creation date with the current date, and if the match says that the retention term is expired, then the script delete the data,
  • The only exception is a “freeze” order issued by a Court or a prosecutor. In this case it is possible to avoid the requested data to be destroyed,
  • The “freeze” order are notified either by fax, secure email or direct order to the “Protocol department” (that handles the incoming communications, and that “route” the messages to the concerned people),
  • While when the offices are closed there is always at least one resource belonging to the technical department to be alerted in case of urgency, the administrative offices just shut down the curtains of Friday at – say – 5P.M.,

Scenario:
– let’s say that a secure mail or a fax containing the “freezing” order arrives when the Protocol Department is closed. This means that the request will be processed the next day,

– let’s say that the “freezing” order concerns data that are going to be destroyed the very same Friday night when the order arrived,

What happens is that the “freezing” order arrived timely, before the data were destroyed, but since the internal route of the order is handled when the term is expired, the data have been deleted.

A possible solution could be to extend the deleting time frame of three days (thus accounting for the week-end gap) but it doesn’t work. Here is why.

If I have to destroy the data on Friday, and I kept it until Monday just to check if some Court order has been notified in the meantime, it might happens that on the very same Monday a Court order might be notified in relationship to the Friday-to-be-deleted data (when the data are supposed not to exist anymore).

So, if I follow the DRD I must refuse to comply with the Court order because though the data are there, they can be processed only if the Court order were notified within the original term. On the other hand, I can’t refuse to obey to a Court order, if I still have the concerned information.

A contemporary version of the Buridan’s Ass Paradox.

 

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Data Protection vs Data Retention

One of the oddities of the Data Protection legal framework is the relationship between Data Retention and Data Protection and the (wrong) notion that when the retention period has expired, the retained data must be deleted.

Let’s start from scratch: as soon as the services work properly, an ISP has no need to preserve the traffic data, but since we don’t live in a perfect world, problems happen so it is necessary to retain some information for troubleshooting and traffic shaping; furthermore, customers’ claims, billing and legal issues strongly support the need to save some more information. Thus, ISPs – though on a voluntary basis – do collect and retain traffic-related information as long as these information are useful to pursue legitimate goals.

Enter the Data Retention. With a questionable motive, ISPs are now forced – forced – to retain for a limited time some traffic data for the sake of the law enforcement community. In other words, what before the Data Rention Era was voluntary, now is mandatory.

But what happens when the mandatory retention period expires? The answer is (supposed to be) easy: the ordinary Data Protection legal regime comes back into force, so the ISPs are – or should be – free to either continue keeping those data (for legitimate purposes) or deleting it.

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The Datagate Legal Implication under German Law

An interesting article from Axel Spies, a Washington-based ICT lawyer, assesses the impact of the US spying over the German Chanchelor, Angela Merkel.

Here is an excerpt from the “Conclusion” section:

Most Blog participants were more pessimistic about the legal remedies having any leverage against spying. To quote a key statement in the Blog: “What Germany can “legally” do against wiretapping is likely to be on a similar level as asking what Pakistan can do ” legally” against U.S. drone attacks on its territory. Politically, maybe some counteraction in the areas of punitive tariffs on imports from the U.S. or the termination of international treaties is conceivable. But this is less a question of being allowed, rather than being able to follow through with sanctions and thus hardly the subject of a legal discussion.” Müller further added this observation: “If there were an effective counter-espionage [in Germany], also against supposed “friends” [in the U.S.], then it would hardly be possible to spy on the head of a befriended government’s private and political communication.”

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The freedom of being a stone-age man or I don’t want to live “smart”

One of the most revealing books I’ve read (that I translated into Italian for local publisher) is Alan Cooper‘s The Inmates are Running the Asylum. Is a book about programming and the fact that core decisions come from a bunch of geeks working down below the basement of the company’s building, while marketing and PR guys occupy the fancy upper floors (have you seen the British sit-com “The IT Crowd“?) Continue reading “The freedom of being a stone-age man or I don’t want to live “smart””