The Data Retention (EC Directive) Regulations 2009

[Joel Harrison]

I'm not sure this is actually a substantive change from the previous
draft of the Regulations.

Under reg 13 of the previous draft, the Regulations did not apply to a
public communications provider if the relevant communications data was
retained in the UK by another public communications provider.
However, the SoS had the power to disapply reg 13 (i.e. to require
overlapping retention).

Under reg 10 of the new draft, and assuming that the SoS complies with
the law (i.e. the obligation under reg 10(2)), the Regulations will
apply to a public communications provider unless the relevant
communications data is retained in the UK by another public
communications provider.  The SoS still has the power to require
overlapping retention because, although reg 10(2) *requires* a notice
to be given under reg 10(1) where nobody else is retaining the data,
it does not *prevent* a notice from being given under reg 10(1) where
somebody else *is* retaining the data).

Interestingly, reg 10(2) does not say exactly *when* the SoS must give
notice under reg 10(1)!

Joel

On Thu, Feb 12, 2009 at 11:30 AM, Richard Clayton
<richard@highwayman.com> wrote:
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> <http://www.homeoffice.gov.uk/documents/cons-2008-transposition-
> dir/cons-2008-draft-regulations?view=Binary>
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> They have stuck with 12 months :-(  but since the consultation last
> Autumn the following magic has been added:
>
> 10. (1) These Regulations do not apply to a public communications
>    provider unless the provider is given a notice in writing by the
>    Secretary of State in accordance with this regulation.
>
>    (2) The Secretary of State must give a written notice to a public
>    communications provider under paragraph (1) unless the
>    communications data concerned are retained in the United Kingdom in
>    accordance with these Regulations by another public communications
>    provider.
>
> the magic being that the Home Office now gets to avoid having to deal
> with the long tail of ISPs where it is not cost effective to insist on
> data retention; BUT Brussels is happy because the law says that they
> ought to be doing it...  and who could even suggest (quelle horreur)
> that the Secretary of State might break the law !
>
> - --
> richard                                                   Richard Clayton
>
> Those who would give up essential Liberty, to purchase a little temporary
> Safety, deserve neither Liberty nor Safety. Benjamin Franklin 11 Nov 1755
>
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