Data retention 'ineffective' in fighting serious crime

Comms data retention is ineffective for the prosecution of serious crime, according to a study of German police statistics by local privacy activists.

Germany implemented a European Union directive in 2008 requiring telecoms operators and ISPs to retain data about customers' communications, including numbers called or email addresses contacted along with their times and dates.

Police and other law enforcement agencies had the option to acquire this data in the process of investigating serious crimes, until last year when a German constitutional court struck down the measures on the basis that they interfered disproportionately with fundamental rights.

An analysis (PDF) of Federal Crime Agency (BKA) statistics, published by German privacy rights group AK Vorrat, suggests the loss of data retention will make little practical difference to police.

While data retention was in operation, more serious criminal acts (2009: 1,422,968) were reported to police than before (2007: 1,359,102) but a smaller proportion were resolved. In 2009 76.3 per cent of serious crime were cleared up compared to 77.6 per cent in 2007, before the introduction of the blanket retention of communications data rules in 2008.

After the additional retention of internet traffic data began in 2009, the number of recorded internet offences increased from 167,451 in 2008 to 206,909 in 2009. The clear-up rate for internet crime fell from 79.8 per cent in 2008 down to 75.7 per cent in 2009.

Far more is involved here than whether or not data retention is available as a tool for law enforcement. Headline figures ignore the types of crimes under investigation, and the stats also fail to factor in police numbers, changing in reporting rules or many other factors - not least whether the changes in clean-up rates for serious crime might be explained by statistical variations.

The furthest it seems possible to go is that the argument that data retention is essential for police in the fight against serious crime - advanced at the time the EU rules on data retention were being pushed through in Brussels - isn't supported by the German figures.

AK Vorrat reckons blanket data retention prompted crooks to change up their practices, resulting in procedures that eroded personal privacy while doing little to support criminal investigations.

Crooks begin to employ internet cafés, wireless internet access points, anonymization services, public telephones, unregistered mobile telephone cards, non-electronic communications channels to avoid monitoring by police, the theory goes.

"This avoidance behaviour can not only render retained data meaningless but also frustrate more targeted investigation techniques that would otherwise have been available to law enforcement," AK Vorrat concludes.

"Overall, blanket data retention can thus be counterproductive to criminal investigations, facilitating some, but rendering many more futile."

Some German politicians, including Minister of Justice Sabine Leutheusser-Schnarrenberger, also advocate targeted data retention rather than blanket data retention rules. The privacy-invading practices of the former East German secret police are all too fresh in the minds of many Germans, making the country sensitive to arguments that individual privacy is being violated.

Many countries in Europe share similar concerns about blanket data retention.

A coalition of more than 100 civil liberties groups, trade unions, jurists, doctors and others are urging Brussels to repeal blanket data retention rules in favour of a "system of expedited preservation and targeted collection of traffic data".

The EU Court of Justice is expected to rule on lawsuits challenging the effectiveness of blanket data retention next year. Six member states are yet to apply the EU directive, while in those that have a number of lawsuits challenging the effectiveness of the regulations remain active. ®