The standards for protection of personal data established by the Natural Persons Data Protection Law (implementing Directive 95/46/EC) and the Electronic Communications Law (implementing Directive 2002/58/EC) will soon become subject to new exceptions with the implementation in Latvia of the newly adopted Data Retention Directive (Directive 2006/24/EC on the retention of data generated or processes in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC). The Data Retention Directive must be implemented by 15 September 2007.
The much disputed Data Retention Directive, aiming to ensure the availability of electronic data for investigation, detection and prosecution of serious crime, will impose obligations on the providers of publicly available electronic communications services or of public communications networks to retain certain categories of data generated or processed by such providers. The data to be retained will comprise data necessary to identify the source of a communication, the destination of a communication, the date, time and duration of a communication, the type of communication, users’ communication equipment and the location of mobile communication equipment.
An important aspect of the Data Retention Directive is that the obligation to retain data will extend not only to successful calls but also to unsuccessful call attempts. The Data Retention Directive will however apply only to those data which will already be generated within the public communications networks serviced by the providers of such networks, therefore no generation of any new data will be required. Due to the Member States being unable to reach an agreement as to the period of retention, the Data Retention Directive will leave this to the discretion of the Member States, however with the minimum period of six months and the maximum period of two years from the date of the communication.
While the Data Retention Directive will definitely make it easier for the investigation authorities to have access to data required to combat crime, it is likely to have at least some negative effects on the providers of publicly available electronic communications services or of public communications networks. The main of such negative effects is that the providers of publicly available electronic communications services or of public communications networks will need to incur additional costs for acquisition or upgrading of data retention equipment. Since the Data Retention Directive does not provide for an obligation of the Member States to compensate any costs related to data retention, it is expected that no such compensation will be provided in Latvian law.
Another negative effect of the Data Retention Directive is that it will extend to communications data related to Internet access, Internet telephony and Internet e-mail. Due to the limited volume of information currently retained by providers of Internet services or networks, the retention of communications data relating to Internet will require such providers to implement significant changes in their policies and procedures. According to the Data Retention Directive, the application of the Data Retention Directive to the retention of communications data relating to Internet access, Internet telephony and Internet e-mail may be postponed by each Member State by 15 March 2009. Similarly to other Member States, Latvia has already informed the European Commission that it intends to make use of such prolongation.
The positive aspects of the Data Retention Directive include the definition of the categories of data subject to retention. This should make it easier for the providers of publicly available electronic communications services or of public communications networks to comply with the data requests of investigation authorities compared to the present situation where the compliance with such requests may require the providers to specifically search, select and adjust, in each particular case, the information subject to disclosure under the Electronic Communications Law.
Another positive aspect of the Data Retention Directive is that it sets shorter periods for the retention of data compared to the period of three years currently required by the Electronic Communications Law. Also, the Data Retention Directive will allow the providers of publicly available electronic communications services or of public communications networks to delete any data not requested by the investigation authorities by the end of the retention period.
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