Телекоммуникациялық және интернет-трафик деректерін сақтау саясаты

Storage of telephony and internet traffic and transaction metadata
Data retention defines the policies of persistent data and records management for meeting legal and business data archival requirements. Although sometimes interchangeable, it is not to be confused with the Data Protection Act 1998. The different data retention policies weigh legal and privacy concerns economics and need to know concerns to determine the retention time, archival rules, data formats, and the permissible means of storage, access, and encryption.

In the field of telecommunications, "data retention" generally refers to the storage of call detail records (CDRs) of telephony and internet traffic and transaction data (IPDRs) by governments and commercial organisations. In the case of government data retention, the data that is stored is usually of telephone calls made and received, emails sent and received, and websites visited. Location data is also collected. The primary objective in government data retention is traffic analysis and mass surveillance. By analysing the retained data, governments can identify the locations of individuals, an individual's associates and the members of a group such as political opponents. These activities may or may not be lawful, depending on the constitutions and laws of each country. In many jurisdictions, access to these databases may be made by a government with little or no judicial oversight. In the case of commercial data retention, the data retained will usually be on transactions and web sites visited. Data retention also covers data collected by other means (e. g., by Automatic number plate recognition systems) and held by government and commercial organisations.

A data retention policy is a recognized and proven protocol within an organization for retaining information for operational use while ensuring adherence to the laws and regulations concerning them. The objectives of a data retention policy are to keep important information for future use or reference, to organize information so it can be searched and accessed at a later date and to dispose of information that is no longer needed. The data retention policies within an organization are a set of guidelines that describes which data will be archived, how long it will be kept, what happens to the data at the end of the retention period (archive or destroy) and other factors concerning the retention of the data. A part of any effective data retention policy is the permanent deletion of the retained data; achieving secure deletion of data by encrypting the data when stored, and then deleting the encryption key after a specified retention period. Thus, effectively deleting the data object and its copies stored in online and offline locations.

In 2015, the Australian government introduced mandatory data retention laws that allows data to be retained up to two years. The scheme is estimated to cost at least AU$400 million per year to implement, working out to at least $16 per user per year. It requires telecommunication providers and ISPs to retain telephony, Internet and email metadata for two years, accessible without a warrant, and could possibly be used to target file sharing. The Attorney General has broad discretion on which agencies are allowed to access metadata, including private agencies. The Greens were strongly opposed to the introduction of these laws, citing privacy concerns and the increased prospect of 'speculative invoicing' over alleged copyright infringement cases. The Labor Party initially opposed as well, but later agreed to passing the law after additional safeguards were put in place to afford journalists some protection.

Implementation of the directive was part of Act. No. 259/2010 Coll. on electronic communications as later amended. Under Art. 97 (3), telecommunication data are to be stored between 6 and 12 months. The Czech Constitutional Court has deemed the law unconstitutional and found it to be infringing on the peoples right to privacy. As of July 2012, new legislation was on its way.

Denmark has implemented the EU data retention directive and much more, by logging all internet flow or sessions between operators and operators and consumers. "2.2.1. Session logging (section 5(1) of the Executive Order) Providers of access to the internet must, in respect of the initiating and terminating package of an internet session, retain data that identifies the sending and receiving internet protocol address (in the following called IP address), the sending and receiving port number and the transmission protocol." "2.2.2. Sampling (section 5(4) of the Executive Order) The obligation to retain data about the initiating and terminating package of an internet session does not apply to providers in case such retention is not technically feasible in their systems. In that case, data must instead be retained for every 500th package that is part of an end user's communication on the internet." "2.2.5. Hot spots (section 5(3) of the Executive Order) In addition to the internet data that must otherwise be retained, the provider must retain data that identifies the precise geographic or physical location of a hot spot and the identity of the communication equipment used. This means that a provider of internet access via a hot spot must retain data on a user's access to the internet and, at the same time, retain data that identifies the geographic location of the hot spot in question."

The German Bundestag had implemented the directive in "Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG". The law became valid on 1 January 2008. Any communications data had to be retained for six months. On 2 March 2010, the Federal Constitutional Court of Germany ruled the law unconstitutional as a violation of the guarantee of the secrecy of correspondence. On 16 October 2015, a second law for shorter, up to 10 weeks long, data retention excluding email communication was passed by parliament. However, this act was ruled incompatible with German and European laws by an injunction of the Higher Administrative Court of North Rhine Westphalia. As a result, on June 28, 2017, three days before the planned start of data retention, the Federal Network Agency suspended the introduction of data retention until a final decision in the principle proceedings.

In July 2005 new legal requirements on data retention came into force in Italy. Subscriber information Internet cafés and public telephone shops with at least three terminals must seek a license permit within 30 days from the Ministry of Home Affairs. They must also store traffic data for a period which may be determined later by administrative decree. Wi Fi hotspots and locations that do not store traffic data have to secure ID information from users before allowing them to log on. For example, users may be required to enter a number from an ID card or driving license. It is not clear how this information is validated. Mobile telephony users must identify themselves before service activation, or before a SIM card may be obtained. Resellers of mobile subscriptions or pre paid cards must verify the identity of purchasers and retain a photocopy of identity cards. Telephony data Data, including location data, on fixed line and mobile telephony must be retained for 24 months. There is no requirement to store the content of calls. Telephony operators must retain a record of all unsuccessful dial attempts. ISP data Internet service providers must retain all data for at least 12 months. The law does not specify exactly what traffic data must be retained. There is no requirement to store the content of internet communications. Legality The legislation of July 2005 enables data retention by outlawing all the relevant data protection provisions until 31 December 2007. Under the data protection provisions, service providers are obliged to store traffic data and user data for no less than 365 days, even if they no longer need it to process the communication or to send bills, policy requires user id information, location, tracking data be stored and kept on file for easy access by law enforcement and/or other authorities who request this information (permission must be asked to view sensitive user ID data on file). The traffic data which will now be retained can be used for anti terrorism purposes and for general penal enforcement of criminal offences large and small. Italy already required the retention of telephony traffic data for 48 months, but without location data. Italy has adopted the EU Directive on Privacy and Electronic Communications 2002 but with an exemption to the requirement to erase traffic data.

The directive was transposed into law by Law 32/2008. In December 2017, D3 Defesa dos Direitos Digitais, a Portuguese digital rights organization, presented a complaint to the Justice Ombudsman, based on the case law of the Court of Justice of the European Union, following several opinions of the Portuguese Data Protection Authority. In January 2019, the Ombudsman issued an official recommendation to the Justice Ministry, defending the need to change the national law, in order to comply with the CJEU case law. Some weeks later, in March, the Ombudsman received an answer by the Minister of Justice, where the Minister refused changes to the law. As such, in August 2019, the Ombudsman decided to ask the Portuguese Constitutional Court for a ruling on the constitutionality of the law. In 2022, the Portuguese Constitutional Court published its decision, striking down Law 32/2008 as unconstitutional. Among other things, the Court considered that an undifferentiated and generalized obligation to store all traffic and location data relating to all people did not respect the proportionality principle. In response to this decision, the parliament created a data retention working party, which studied the subject for more than a year and held several hearings with experts. In 2023, a law proposal was approved in the parliament. However, the President of the Republic decided to make use of its prerogative of asking the Constitutional Court for a preventive rule, before approving the law. In this ruling, the Constitutional Court once again decided against the proposed data retention regime, for similar reasons, as the law still required indiscriminate and general data retention of traffic and location data. The diploma was returned to the Parliament and did not become law. In 2024, the Parliament approved a new law proposal. This time, the President of the Republic opted for not requesting a preventive rule from the Constitutional Court, and so the law was published and entered into force. The digital rights association D3 Defesa dos Direitos Digitais maintains that the current law is still a violation of fundamental rights, as it delegates core elements of a fundamental rights restriction to a special formation of the Supreme Court. This makes it impossible to demonstrate the required proportionality of the restriction, or to demonstrate how the data retention regime preserves the essential core of the restricted fundamental rights, as it must.

The EU directive has been transposed into Romanian law as well, initially as Law 298/2008. However, the Constitutional Court of Romania subsequently struck down the law in 2009 as violating constitutional rights. The court held that the transposing act violated the constitutional rights of privacy, of confidentiality in communications, and of free speech. The European Commission has subsequently sued Romania in 2011 for non implementation, threatening Romania with a fine of 30,000 euros per day. The Romanian parliament passed a new law in 2012, which was signed by president Traian Băsescu in June. The Law 82/2012 has been nicknamed "Big Brother" (using the untranslated English expression) by various Romanian non governmental organizations opposing it. On July 8, 2014, this law too was declared unconstitutional by the Constitutional Court of Romania.

Slovakia has implemented the directive in Act No. 610/2003 Coll. on electronic communications as later amended. Telecommunication data are stored for six months in the case of data related to Internet, Internet email and Internet telephony (art. 59a (6) a), and for 12 months in the case of other types of communication (art. 59a (6) b). In April 2014, the Slovak Constitutional Court preliminary suspended effectiveness of the Slovak implementation of Data Retention Directive and accepted the case for the further review. In April 2015 Constitutional court decided that some parts of Slovak laws implementing DR Directive are not in compliance with Slovak constitution and Convention for the Protection of Human Rights and Fundamental Freedoms. According to now invalid provisions of the Electronic Communications Act, the providers of electronic communications were obliged to store traffic data, localization data and data about the communicating parties for a period of 6 months (in the case Internet, email or VoIP communication) or for a period of 12 months (in case of other communication).

Sweden implemented the EU's 2006 Data Retention Directive in May 2012, and it was fined €3 million by the Court of Justice of the European Union for its belated transposition (the deadline was 15 September 2007). The directive allowed member states to determine the duration data is retained, ranging from six months to two years; the Riksdag, Sweden's legislature, opted for six months. In April 2014, however, the CJEU struck down the Data Retention Directive. Following the judgement, PTS, Sweden's telecommunications regulator, told Swedish ISPs and telcos that they would no longer have to retain call records and internet metadata. The Swedish government initiated a one man investigation that stated that Sweden could keep on with data retention. After that, the PTS reversed course. Most of Sweden's major telecommunications companies complied immediately, though Tele2 appealed this order before the Administrative Court in Stockholm claiming that the Swedish implementation should be reversed following the directive being declared unvalid, including the fact that the Swedish implementation went further than the directive, including registration of failed telephone calls and the geographic endpoint of a mobile communications. The appeal was rejected. The one holdout ISP, Bahnhof, was given an order to comply by November 24 deadline or face a five million krona ($680,000) fine. Tele2 appealed the first level court rejection to the Swedish Administrative Court of Appeal, that sent the matter to the European Court of Justice of the European Union. That led to a judgement that once again invalidated blanket data retention of all communications of all citizens' communications to combat crime. See under European Union above.

The Data Retention and Investigatory Powers Act 2014 was referred to as the "snooper's charter" communications data bill. Theresa May, a strong supporter of the Parliament Act, said in a speech that "If we (parliament) do not act, we risk sleepwalking into a society in which crime can no longer be investigated and terrorists can plot their murderous schemes undisrupted." From this information, governments can identify an individual's associates, location, group memberships, political affiliations and other personal information. In a television interview, the EU Advocate General Pedro Cruz Villalón highlighted the risk that the retained data might be used illegally in ways that are "potentially detrimental to privacy or, more broadly, fraudulent or even malicious". It is not clear whether data on credit card transactions is also retained for seven years. Vehicle movement data – two years Documents leaked from the Association of Chief Police Officers (ACPO) have revealed that the UK is planning to collect data from a nationwide network of automatic numberplate recognition cameras and store the data for two years in a controversial new centre being built at Hendon. This data could then be linked to other data held by the government and watchlists from the police and security services.

The EU's Data Retention Directive has been implemented into Norwegian law in 2011, but this will not be in effect before 1 January 2015.

A 2016 anti terrorist federal law 374 FZ known as Yarovaya Law requires all telecommunication providers to store phone call, text and email metadata, as well as the actual voice recordings for up to 6 months. Messaging services like WhatsApp are required to provide cryptographic backdoors to law enforcement. The law has been widely criticized both in Russia and abroad as an infringement of human rights and a waste of resources.

On 29 June 2010, the Serbian parliament adopted the Law on Electronic Communications, according to which the operator must keep the data on electronic communications for 12 months. This provision was criticized as unconstitutional by opposition parties and by Ombudsman Saša Janković.

As from 7 July 2016, the Swiss Federal Law about the Surveillance of the Post and Telecommunications entered into force, passed by the Swiss government on 18 March 2016.

Switzerland only applies data retention to the largest Internet service providers with over 100 million CHF in annual Swiss sourced revenue. This notably exempts derived communications providers such as ProtonMail, a popular encrypted email service based in Switzerland.

The National Security Agency (NSA) commonly records Internet metadata for the whole planet for up to a year in its MARINA database, where it is used for pattern of life analysis. U. S. persons are not exempt because metadata are not considered data under US law (section 702 of the FISA Amendments Act). Its equivalent for phone records is MAINWAY. The NSA records SMS and similar text messages worldwide through DISHFIRE.

Various United States agencies leverage the (voluntary) data retention practised by many U. S. commercial organizations through programs such as PRISM and MUSCULAR. Amazon is known to retain extensive data on customer transactions. Google is also known to retain data on searches, and other transactions. If a company is based in the United States the Federal Bureau of Investigation (FBI) can obtain access to such information by means of a National Security Letter (NSL). The Electronic Frontier Foundation states that "NSLs are secret subpoenas issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers or ecommerce companies produce records of their customers' transactions. The FBI can issue NSLs for information about people who haven't committed any crimes. NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the controversial USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing". The Washington Post has published a well researched article on the FBI's use of National Security Letters.

The United States does not have any Internet Service Provider (ISP) mandatory data retention laws similar to the European Data Retention Directive, which was retroactively invalidated in 2014 by the Court of Justice of the European Union. Some attempts to create mandatory retention legislation have failed:

In 1999 two models of mandatory data retention were suggested for the United States: What IP address was assigned to a customer at a specific time. In the second model, "which is closer to what Europe adopted", telephone numbers dialed, contents of Web pages visited, and recipients of e mail messages must be retained by the ISP for an unspecified amount of time. The Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act (SAFETY Act) of 2009 also known as H. R. 1076 and S.436 would require providers of "electronic communication or remote computing services" to "retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user". This bill never became a law.

The current directive proposal (see above) would force ISPs to record the internet communications of its users. The basic assumption is that this information can be used to identify with whom someone, whether innocent citizen or terrorist, communicated throughout a specific timespan. Believing that such as mandate would be useful is ignoring that some very committed community of crypto professionals has been preparing for such legislation for decades. Below are some strategies available today to anyone to protect themselves, avoid such traces, and render such expensive and legally dubious logging operations useless.

There are anonymizing proxies that provide slightly more private web access. Proxies must use HTTPS encryption in order to provide any level of protection at all. Unfortunately, proxies require the user to place a large amount of trust in the proxy operator (since they see everything the user does over HTTP), and may be subject to traffic analysis.

Some P2P services like file transfer or voice over IP use other computers to allow communication between computers behind firewalls. This means that trying to follow a call between two citizens might, mistakenly, identify a third citizen unaware of the communication.

For security conscious citizens with some basic technical knowledge, tools like I2P – The Anonymous Network, Tor, Mixmaster and the cryptography options integrated into any many modern mail clients can be employed. I2P is an international peer to peer anonymizing network, which aims at not only evading data retention, but also at making spying by other parties impossible. The structure is similar to the one TOR (see next paragraph) uses, but there are substantial differences. It protects better against traffic analysis and offers strong anonymity and for net internal traffic end to end encryption. Due to unidirectional tunnels it is less prone to timing attacks than Tor. In I2P, several services are available: anonymous browsing, anonymous e mails, anonymous instant messenger, anonymous file sharing, and anonymous hosting of websites, among others. Tor is a project of the U. S. non profit Tor Project to develop and improve an onion routing network to shield its users from traffic analysis. Mixmaster is a remailer service that allows anonymous email sending. JAP is a project very similar to Tor. It is designed to route web requests through several proxies to hide the end user's Internet address. Tor support has been included into JAP.

The Arbeitskreis Vorratsdatenspeicherung (German Working Group on Data Retention) is an association of civil rights campaigners, data protection activists and Internet users. The Arbeitskreis coordinates the campaign against the introduction of data retention in Germany. An analysis of federal Crime Agency (BKA) statistics published on 27 January 2010 by civil liberties NGO AK Vorrat revealed that data retention did not make a prosecution of serious crime any more effective. As the EU Commission is currently considering changes to the controversial EU data retention directive, a coalition of more than 100 civil liberties, data protection and human rights associations, jurists, trade unions and others are urging the commission to propose the repeal of the EU requirements regarding data retention in favour of a system of expedited preservation and targeted collection of traffic data.