By Jan Dhont

The Belgian Ministry of Justice has proposed a bill imposing a two-year data retention period for telecom operators and Internet service providers that offer communication services in Belgium. The retention period would serve the investigation, detection, and prosecution of serious crimes, such as organized crime or terrorist activities. Service providers would be required to retain traffic data, such as the sender and receiver’s telephone number or e-mail address, IP numbers, and the date, time, and duration of a communication.
The bill is being disputed heavily by both the Belgian Data Protection Authority (Belgian DPA) and the Internet Services Providers’ Association (ISPA).

According to a July 1, 2009 opinion, the Belgian DPA feels that a 12-month retention period largely suffices in fulfilling criminal investigation objectives. The DPA feels the retention of traffic information for a longer period of time would be disproportionate and difficult to conciliate with the right to privacy and fundamental freedoms provided in the Belgian Constitution and European Human Rights law.

According to ISPA, the bulk of public authority access requests come within six months from the day that the communication took place. Requests sent after 12 months from that day represent no more than five percent of the total of such requests. The ISPA said that a two-year data retention period comes with an expensive price tag. It fears that, ultimately, consumers will pay twice for privacy-unfriendly regulations: first with their privacy, and again with their wallets.

In Europe, Directive 2006/24/EC of the European Parliament and the Council of March 15, 2006 requires national legislators to implement a data retention requirement varying from six months to two years (Article 6 of the Directive). Currently, there is no clear requirement for telecom operators to retain traffic information since the relevant provisions of the Belgian Telecom Act have not been executed by secondary legislation and provide for an open data retention window ranging from 12 to 36 months.

In its opinion, the Belgian DPA reminds the ministry that several EU member states have adopted a 12-month, or even shorter, data retention period (e.g. France, Germany, Spain, Portugal, the Netherlands, Sweden, and the United Kingdom). Since the Directive aims to harmonize legislation on this matter between EU member states, it prefers the implementation of the same 12-month data retention period as in most other EU countries.

The Opinion does not bind the Ministry of Justice and it is expected that the proposed retention requirement will make it to Parliament. To be continued.

Jan Dhont heads the privacy practice of Lorenz Brussels. He specializes in data protection and privacy, telecommunications, media and technology law. He can be reached at j.dhont@lorenz-law.com.