Transposition of Data Retention Directive: Government Response to Consultation

February 12, 2009

In August the Home Office published a consultation paper calling for views on draft Electronic Communications Data Retention (EC Directive) Regulations 2008. The paper invited views on the proposed final phase for the transposition of the Directive on the retention of internet-related data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks. Specifically, comments were invited on the draft Electronic Communications Data Retention (EC Directive) Regulations 2008 which will replace the Data Retention (EC Directive) Regulations 2007 and will therefore incorporate the obligation to retain communications data in relation to fixed line telephony and mobile telephony, as well as internet access, internet email and internet telephony.

SCL and many others provided a response in October 2008.

The Home Office has now published its responses and revised draft regulations. They can be downloaded from the panel opposite or can be accessed here.

Laurence Eastham writes:

It is unfortunate that the revised draft regulations and the Home Office response do little to meet the reasoned objections raised in the SCL response. To be honest, albeit on a quick reading, they do nothing at all to meet that response.

It may say something about the priorities of those considering the responses that the person charged with sending out details of the responses to SCL describes himself as ‘Policy Advisor – Home Office (Covert Investigation Policy Team), Secretary to ACPO Data Communications Group’. (ACPO is of course the Association of Chief Police Officers.)

Is there a danger that, with such a perspective, one tends to lump in reasoned and considered (and to my mind apolitical) objections from SCL with the large number of objectors who were ignored, I think defensibly, as objecting to the Directive’s principle thrust.

Readers may also be interested to read the judgment concerning the challenge by Ireland, supported by the Slovak Republic, which contended that Directive 2006/24 cannot be based on Article 95 EC since its ‘centre of gravity’ does not concern the functioning of the internal market.  See here