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"Renewable retention warrants": a new concept in the data retention debate
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A document circulated by the Bulgarian Presidency of the Council makes the case for "renewable retention warrants", which are "intended to ensure the law enforcement needs to have certain data categories being retained by the electronic service providers and provide additional safeguard that the data retention regime would comply with the strict necessity principle as prescribed by the ECJ [Court of Justice of the EU]."

See: WORKING DOCUMENT from: Presidency to: DAPIX (Friends of the Presidency - Data Retention): Renewable retention warrants = initial exchange of views (WK 3974/2018, LIMITE, 12 April 2018, pdf)

The mandatory, generalised retention of telecommunications metadata for law enforcement purposes has been ruled illegal by the Court of Justice of the EU (CJEU) - first in the Digital Rights Ireland case in April 2014 (pdf) and more recently in the Watson/Tele2 judgment of December 2016 (pdf).

Despite the rulings, data retention regimes remain in place in a large number of Member States - but the differing rules and requirements in each state mean that authorities have been examining ways to ensure that national provisions meet requirements of the CJEU, as well as potential ways to introduce a new EU-wide retention regime.

According to the Bulgarian Presidency's paper, which was circulated to national delegations in the Council working party DAPIX (Friends of the Presidency - Data Retention):

"For the purpose of the present discussion RRW would be provisionally described as a warrant issued by a competent national authority addressed to (an) electronic service provider(s) (ESPs) operating in the territory of a Member State requesting the provider to retain (certain categories of) data which is valid for a specific period of time during which it can be renewed if it fulfils the specific conditions prescribed by national law for its renewal, including that its proportionality and necessity are justified by a prior and confirmed by a subsequent threat assessment."

However, the problem of there being no EU-wide legal basis (at the moment) is raised by the Presidency:

"The legal basis for issuing a RRW would normally derive from provisions regulated in the national law as no EU legal basis is currently in place. Such national regimes would allow to better take into account national specificities. On the other hand the absence of harmonised rules at EU level might pose some challenges for the ESPs that could be confronted with different national legal regimes regulating RRW."

No further comments are made on this issue, but the paper has been circulated with the aim of gathering other national authorities' opinions and "relevant national experience that can bring further clarity on the concept."

Regarding the justification for issuing a RRW, the paper notes the requirement for there to be a link between the data to be retained and the specific purpose pursued, and thus:

"the necessity for issuing a RRW should derive from a prior threat assessment reflecting the specific circumstances in that MS or region (i.e. technological developments, a newly emerging crime trend or significant increase of specific type of crimes, etc.) which justify the needs of the competent authorities in that MS or region to have (certain categories of) data available for their investigations and prosecutions."

The paper also discusses judicial oversight, the service providers to whom an RRW may be addressed, the data to be retained, the retention period, issuing authorities, the validity period and the conditions for renewal.

A "mindmap" is also included, "to illustrate the matter".

The issue of "renewable data retention warrants" was included on the agenda of the 18 April meeting of the DAPIX (Friends of the Presidency - Data Retention) working group meeting, although the minutes are yet to be published.

See: WORKING DOCUMENT from: Presidency to: DAPIX (Friends of the Presidency - Data Retention): Renewable retention warrants = initial exchange of views (WK 3974/2018, LIMITE, 12 April 2018, pdf)

Further reading

The "reflection process" on data retention: working documents discussed by Council published (28 February 2018)

Member State data retention regimes - what's changed? The answer is very little so far (20 November 2017)

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