Amendment Telecommunications Act: Telephony and Internet Data Retention
On 7 and 8 July, the Upper House of Parliament discussed the
bill "Act on the Obligation to Retain Telecommunications
Data" for the amendment of the Telecommunications Act
(Telecommunicatiewet). This bill sets out the obligation of telecom
providers to retain various telecommunications data and is an
implementation of the European Data Retention Directive
2006/24/EC.
The Data Retention Directive
The Data Retention Directive obligates EU Member States to
implement legislation arranging for the retention of telecom and
internet data for purposes of the prevention, investigation,
detection and prosecution of criminal offences, including
terrorism. These data are traffic and location data, on the basis
of which law enforcement authorities may find out where a suspect
is or was at a certain time. The law enforcement authorities
regularly insist on an extension of their powers to receive traffic
and location data that may be relevant to the detection and
prosecution of criminal offences.
Discussion on period
of retention
Implementation of the Directive is mandatory. The Netherlands is
one on the last six countries to implement the Directive: 21 other
countries have already done so. For telecom providers the
obligation to retain data will lead to more efforts and costs; they
will have to retain data for a longer time, which means more data.
Initially the bill provided for a retention period for internet
data of eighteen months, but after a debate in the Lower House
of Parliament this term had already been abridged to twelve
months for both telephony and internet data. The Directive sets a
mandatory retention period of a minimum of six months and a maximum
of two years. The very long original retention period
of eighteen months from the bill did not make it because,
among other reasons, this would lead to very drastic obligations
for providers. In addition, the large quantity of data to be
retrieved was a point of criticism; would it really be possible for
law enforcement authorities to filter the necessary information out
of this mass of data?
Motions in the Upper
House
After a long process in the Lower House, the discussion of the
bill in the Upper House did not go unnoticed either; all in all no
less then five motions and three amended motions were
submitted. The majority of the motions were rejected. Two motions
obtained a majority of the votes. The first motion that got a
majority of votes concerns the communication to the European
Commission of the objections of members of the Upper House against
the Directive. Besides, the Upper House wants to ensure that in the
evaluation of the Directive, which is expected in September 2010 at
the latest, attention will be paid to the effectiveness of the data
retained. The second motion that was adopted requires the
Government to consult with Dutch Internet Service Providers
("ISPs") about the retention of internet data, because
the evaluation of the Directive may lead to modifications of the
obligation to retain data. Such modifications could lead to more or
less efforts for the ISPs. The objective of consultations should be
that ISPs will not have to go into unnecessary expenses in the
period up to the evaluation.
Repairing Act: retention
period shortened to six months
Despite the large number of motions, the Upper House did adopt
the bill. It did so on condition that Minister of Justice Hirsch
Ballin will amend the law with regard to the retention period of
internet data. In the bill that was adopted this period is
still twelve months, but the minister has to reduce it to six
months. It is uncertain when the amended act will be entering into
force. Possibly this repairing act of the minister can be adopted
soon, especially as the minister has stated his intention to submit
it 'with the utmost haste'. It is therefore still not clear
as of when the telecom providers will have to comply with the
obligation to retain data, and which term of retention ISPs will
have to observe. In the future, this term will in any case be six
months. We will keep you posted in our newsletters.