Archived Data

Archived Data

In the UK, the operators tend to vary their approach to data retention made available to law enforcement and data subjects running between weeks and a couple of years. However, data retention governed by the Directive and Legislation may go beyond that period, for instance in commercial disputes.

There are many confusing and contradicting issues associated with retention of mobile call information. The legislation appears to create a brickwall blocking unnecessary data retention. Under analysis exclusions or argumentative approaches are revealed that can give the impression that the brickwall has so many holes that it appears to have more holes than a Jeyes Cloth (J-Cloth).

For instance, the operator can give to law enforcement a Gold Copy of the records - a suggestion of the title that it contains everything, but can actually mean it is the only copy remaining. However, given the original raw data may still be with the operator, then what do all these rules really mean?

Law enforcement keep data records for considerably longer than is perceived, but that seems rather obvious when considering 'cold case' reviews.

Solicitors keep records for years in case there is an Appeal/dispute.

Both the Data Protection Act 1998 and 1984 contain requirements associated with 'processed data' and the legal position regarding a processed state and, thus, data rention periods. However, raw data that is untreated is not subject to the DPA in the same way and therefore in a raw data state may remain for many years in an unprocessed state in archive. National Security therefore could have access to archived raw data processed years after the archive was first made, but equally in a processed state data can linger on than most specified periods.

Preservation is not new of course and historically some, prior to digital archiving, had their records recorded to microfiche and as banking records were important some used inventive methods to preserve material and purchased old mines and stored their data in micorfiche format deep in the vaults of the earth in order to main a cold temperature, which if temperature increased (heat) it degraded preservation of the microfiche material. Some figures for storage were 90 years, particularly health and safety records for employees who may have been exposed to working where pervasive toxic conditions existed but weren't fully recognised at the material times.

Digital archiving today uses a range of storage media from optical disks to various data storage containment. It has been said that because of the recording properties of a SIM card data can be retained on a SIM card without degradation for upto 100 years; 50 years may be good though. So SIM maybe used under certain conditions for archive.

For mixed principles of data retention timescales the following provides useful guidance:

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DIRECTIVE 2006/24/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 15 March 2006
on the retention of data generated or processed in connection with the provision of publicly
available electronic communications services or of public communications networks and amending
Directive 2002/58/EC
Article 6
Periods of retention
Member States shall ensure that the categories of data specified in
Article 5 are retained for periods of not less than six months and
not more than two years from the date of the communication.

Download: tinyurl.com/83mjky9

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Directive 2002/58/EC of the European Parliament and of the Council
of 12 July 2002
concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)
(23) Confidentiality of communications should also be ensured in the course of lawful business practice. Where necessary and legally authorised, communications can be recorded for the purpose of providing evidence of a commercial transaction. Directive 95/46/EC applies to such processing. Parties to the communications should be informed prior to the recording about the recording, its purpose and the duration of its storage. The recorded communication should be erased as soon as possible and in any case at the latest by the end of the period during which the transaction can be lawfully challenged.

[Note: retention of data for commercial disputes is considered to be custom and trade, and this can be equivalent to six years]

weblink: eur-lex.europa.eu/LexU...058:en:NOT

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Anti-terrorism, Crime and Security Act 2001
102 to 105 Codes and agreements about the retention of communications data

[Note allows for retention periods longer than Directive on privacy and electronic communications and the Data Protection Act (http://www.legislation.gov.uk/ukpga/1998/29/contents)

weblink: www.legislation.gov.uk...24/part/11

Extra-Statutory

Extra-Statutory

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Where, for illustrative purposes only, a Home Office circular regulates e.g. the use of listening devices and aural and visual procedures, the standards set by that document may be the same as those under a Stature (say RIPA or, previously, IOCA) but that Home Office circular does not mean by following its guidance it makes any acts or omissions compliant with the statutory provisions; conduct arising from following the circulars regulation, and not the statute, could be "wholly extra-statutory" and would probably contravene the European Convention on Human Rights - see Malone v Metropolitan Police Commissioner [1979] Ch 344; cf Malone v United Kingdom (1984) 7 EHRR 14.

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The above represents past history events and matters have or should have moved on since then. When RIPA was introduced it was made clear that "no" extra-statutory conduct or operations were possible arising out of that new legislation. That any acts outside of that may amount to contravention and be unlawful.

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Having illustrated a simplistic model about "extra-statutory" activity by public authority and public bodies or their personnel to avoid giving advice, direction or guidance which would/could probably mean such acts may operate in parallel to the statutory provisions instead of being enshrined within them, the same principle of extra-statutory can apply across many other areas covered by other statutes, too.

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Advice, direction and guidance given to facilitate the transmission of sensitive and/or unlawfuly material over public systems to aid extraction and harvesting of data from device/s might probably be "wholly extra-statutory" conduct or operations. That is even where it is a one-off case. Where advice is given to do acts which appear to go against previously stated authority in dealing with certain types of materials, the expert/examiner should record all dealings with those acts that have been instructed.

.
I picked up on this whilst reading books and papers dealing with judicial review of administrative action, Blackstones Criminal Practice, Archbold, telecommunications law and practice and the laws of the internet etc etc. I also noted that ACPO Guidelines and other provisions in public sector procurement documents appear not to cover any examiner/expert who enters into extra-statutory acts.

.
These are only my observations based upon what I read, which may assist other examiners/experts. I am not giving legal advice and I do hold out to be a lawyer. It could be from what I have read that my observations may be wrong and therefore it is always recommended to seek legal advice about instructions given or past instructions acted upon, under the belief those instructing were authorised to give such directions to do such acts in the first place.

Extra-Statutory

Extra-Statutory

.

Where, for illustrative purposes only, a Home Office circular regulates e.g. the use of listening devices and aural and visual procedures, the standards set by that document may be the same as those under a Stature (say RIPA or, previously, IOCA) but that Home Office circular does not mean by following its guidance it makes any acts or omissions compliant with the statutory provisions; conduct arising from following the circulars regulation, and not the statute, could be "wholly extra-statutory" and would probably contravene the European Convention on Human Rights - see Malone v Metropolitan Police Commissioner [1979] Ch 344; cf Malone v United Kingdom (1984) 7 EHRR 14.

.
The above represents past history events and matters have or should have moved on since then. When RIPA was introduced it was made clear that "no" extra-statutory conduct or operations were possible arising out of that new legislation. That any acts outside of that may amount to contravention and be unlawful.

.
Having illustrated a simplistic model about "extra-statutory" activity by public authority and public bodies or their personnel to avoid giving advice, direction or guidance which would/could probably mean such acts may operate in parallel to the statutory provisions instead of being enshrined within them, the same principle of extra-statutory can apply across many other areas covered by other statutes, too.

.
Advice, direction and guidance given to facilitate the transmission of sensitive and/or unlawfuly material over public systems to aid extraction and harvesting of data from device/s might probably be "wholly extra-statutory" conduct or operations. That is even where it is a one-off case. Where advice is given to do acts which appear to go against previously stated authority in dealing with certain types of materials, the expert/examiner should record all dealings with those acts that have been instructed.

.
I picked up on this whilst reading books and papers dealing with judicial review of administrative action, Blackstones Criminal Practice, Archbold, telecommunications law and practice and the laws of the internet etc etc. I also noted that ACPO Guidelines and other provisions in public sector procurement documents appear not to cover any examiner/expert who enters into extra-statutory acts.

.
These are only my observations based upon what I read, which may assist other examiners/experts. I am not giving legal advice and I do hold out to be a lawyer. It could be from what I have read that my observations may be wrong and therefore it is always recommended to seek legal advice about instructions given or past instructions acted upon, under the belief those instructing were authorised to give such directions to do such acts in the first place.