Original URL: http://www.theregister.co.uk/2008/10/13/home_office_eudrd/

Home Office preps fudgetastic ISP data rules

Cash-strapped Whitehall gives small ISPs free pass

By Christopher Williams

Posted in Law, 13th October 2008 14:10 GMT

A Home Office official has baffled ISPs by telling them new laws will on paper require them all to retain data, but in practice some probably won't be forced to because it could cost the government too much money.

The confusing policy was detailed at the Government and Industry Forum on Technology and Law Enforcement in London on Wednesday. The annual event is closed to the media and public, but El Reg spoke to an attendee who described the presentation on the forthcoming implementation of the EU Data Retention Directive* (EUDRD) as "rambling" and "incoherent".

The government is obliged to transpose the EUDRD in UK by mid-March next year. It says that all ISPs must store data on who communicated with whom and when for up to two years. The government is committed to reimbursing ISPs for the cost of compliance with the directive, as it already does for similar data held by telecoms companies and some volunteer major ISPs to the tune of £8.3m.

The larger broadband providers typically already store the data covered by the EUDRD for billing purposes. Their extra costs will derive from servicing law enforcement requests for access. The problem, the Home Office official revealed last week, is that paying for small ISPs - who often have less sophisticated records systems by default or by design - to retain data and service law enforcement isn't seen in Whitehall as a worthwhile investment.

"But won't the law say we have to retain this data?", his audience asked. "Oh yes", our insider paraphrased the official, "but you won't have to really because we don't want to pay for it".

It's left some in the internet industry wondering if the Home Office knows what it's doing, and worrying about their potential legal exposure.

The Home Office told El Reg in a statement that there are several approaches to funding data retention under discussion as part of the ongoing consultation. "As the consultation paper and ALL subsequent discussions have made clear, it is not the government's intention to disadvantage financially any CSPs," it said.

And apparently, it is not the government's intention to have all ISPs comply with the directive either. Happily for those with too few customers to justify spending, according to the Home Office consultation paper, "the Directive makes no provisions for imposing sanctions on those public communications providers who do not comply with the requirements".

One potential way around the confusion is offered by the consultation paper: "A range of options are available which seek to capture the data required from different parts of the industry, attempting to minimise duplication whilst ensuring full coverage of communications data." So by having BT Wholesale collect the data rather than dozens of ADSL resellers, the government could save itself millions. But our source said clarity on such plans was completely absent last week.

The EUDRD consultation closes 31 October. ®

*The EUDRD had originally been scheduled for transposition as part of the forthcoming Communications Data Bill, but was spun out in order to meet the March deadline. The £12bn Interception Modernisation Programme forms part of the Communication Data Bill, which we wrote about here, here and here. It would pool all the data held by communications firms centrally.