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The European Council has effectively ditched the British proposal for a data retention directive, and has instructed its preparatory bodies to look for another approach to the issue. This doesn't mean the framework is being dropped in its entirety, however, and it could even end up broadening its scope.

The proposal (PDF) was first put forward in the aftermath of the Madrid train bombing. It laid out plans for laws that would require communications service providers to store user data for a minimum of a year, and possibly indefinitely. At the time, political commentators noted that it was very loose in its definition of what exactly constitutes "traffic data".

The Council now says the British proposal does not go far enough because it leaves open the question of what data should be kept. It suggests service providers should be required to retain all the data "processed/generated by the service provider, even if the data have no interest for the service provider".

Joe McNamee, a spokesman for lobby group Political Intelligence, says that this reveals a "scarcely believable lack of technical awareness", and argues that the problems with the old text will not be resolved by this new approach. "Note that in this document, there is still no mention of what problems this is supposed to solve," he says.

The methodology in this policy area doesn't start by identifying a problem and proposing a solution, McNamee argues. It begins by taking a view that there is plenty of data out there that might be useful for law enforcement, and drafting a proposal broad enough to ensure all the data is available if needed.

"There are already virtually no limits, beyond Human Rights legislation, on Member States under the proposal. All data produced - however ephemeral or useless - would need to be retained. 'Data processed' means every calculation made by every chip in every device in every link in the chain of communication of every packet in every transmission," he says.

The original proposal had several gaping flaws. It did not restrict which communications systems would be covered by the bill, and could potentially be extended to include voice over IP, email, the web and so on. There is also no provision made for dealing with duplication of data: as it stands, service providers involved in sending and receiving an email would each be obliged to keep hold of all its associated data.

There is also no guidance on how any directive should be resolved with conflicting legislation at a national level. In the UK for instance, it may well conflict with data protection laws. Service providers will have to store the data very, very safely, implying significant expense.

None of these problems have been addressed, McNamee told The Register. "This methodology gave us RIPA, then Enfopol and now this," he says, predicting "a similarly poorly drafted proposal" will be on the table within weeks or months. ®

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