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In Denmark, Online Tracking of Citizens is an Unwieldy Failure

BY Torben Olander | Wednesday, May 22 2013

Screenshot from European Commission video advocating Internet privacy.

Half a decade after Denmark passed a law mandating that telecommunication companies retain and store their customers' personal data for up to one year, local advocacy groups and the telecom industry are pushing for immediate changes to the legislation. The practice of keeping records of private citizens' Internet use is an unjustifiable invasion of privacy, they say. The police, meanwhile, have concluded that requiring telecoms to store Internet subscriber data has not helped them track criminals, which was the the ostensible purpose of the practice. But the Danish government still wants to postpone an evaluation of the law for another two years.

The practice of tracking and storing Internet users' personal details is called data retention; in the case of telecommunications, it refers to Internet, banking (ATM, credit card) and mobile phone use, with the latter including SMS records plus incoming and outgoing phone calls. In the case of Internet user data, the service provider keeps a record of Internet users' online activity. This is called session logging. In other words, when a subscriber logs on to the Internet, the service provider tracks and stores the user's personal details — such as the location from which they logged on, the pages they visited and the length of time they stayed online.

With big data comes big responsibilities. When it came to the reality of managing and trying to use the data collected by the Internet service providers, some difficulties became apparent. According to a recent report produced by the Danish Ministry of Justice, five years of extensive Internet surveillance have proven to be of almost no use to the police.

“Session logging has caused serious practical problems,” the ministry's staffers write in the report. “The implementation of session logging proved to be unusable to the police; this became clear the first time they tried to use [the data] as part of a criminal investigation.”

The findings outlined in this report have provided new fuel to opponents of the data retention law. They argue that in addition to being an invasion of citizens' privacy, it is inconsistent: Libraries and schools, for example, are exempt from the law, so Internet use in those places is not logged and thus not traceable. But the same users will have their data logged when they surf the ‘net at home. The law's opponents have targeted session logging in particular because it is not required by the 2006 European Data Retention Directive, which compels all EU member states to register telecommunications and Internet traffic. But the means used to collect the data and the scope of the data targeted for retention is left up to the individual member states.

The EU Data Retention Directive has aroused a great deal of controversy in Europe, where EU member states are engaged in an ongoing debate about the right to privacy versus security concerns. Legislators in the European Parliament have argued, as the digital rights NGO Electronic Frontier Foundation puts it, that the directive "fosters a surveillance society and undermines fundamental rights.”

The European Parliament is now trying to address this issue.

Six months ago, the Justice Commission of the European Parliament published a detailed proposal for comprehensive reform of the EU's 1995 data retention rules. The Commission advocates a single law for all the member states rather than the current situation, with different laws leading to high costs of enforcement and a negative impact on business initiatives in the EU. One law for all would “...strengthen online privacy rights and boost Europe's digital economy.” In other words, the Commission is taking a pragmatic approach by appealing to both business and privacy advocates.

Video on the perils of losing digital privacy produced by the Justice Commission of the European Parliament.

“Session logging is a massive invasion of everyone’s privacy. Instead of placing surveillance on a single suspect, we now register and store information on every Danish citizen when they go online,” explained Troels Møller, spokesperson for Bitbureauet, an independent NGO working to keep the Internet open and secure user privacy.

He noted that the justice ministry's report mentions only two cases in which session logging proved useful to the police — and both were cases of financial crimes, not terrorism.

Background

Denmark was one of the driving forces behind the 2006 European Data Retention Directive. The idea behind the directive was to make Internet users' data available to the police and security agencies as a means of fighting crime, particularly terrorism.

The directive compels all Internet service and telecommunication service providers operating in Europe to collect and retain subscribers' incoming and outgoing phone numbers, IP addresses, location data, and other key telecom and Internet traffic data for a period of six months to two years. This applies to all European citizens, including those neither convicted nor suspected of any crime. With a judge's warrant, police and security agencies can obtain the data and use it in their investigations.

Denmark's Data Retention Law, which was passed in 2007, exceeds the requirements of the European directive in several respects, making it the most comprehensive law of all the member states.

According to the Danish law, all Internet traffic must be logged, registered and stored for one year. As mentioned above, this practice is called session logging. But a casual Internet user can, and usually does, generate an enormous amount of data in a single sitting of casual web surfing. As a result, the police and security services are drowning in a tsunami of user data that they cannot sort and therefore cannot use. According to the above-cited report compiled by the Danish Ministry of Justice, 90 percent of the data collected under the Data Retention Law is acquired via session logging — i.e., Internet surveillance. But the software used by the Danish police has proven inadequate for the task of handling and analyzing the majority of the data, rendering it useless — even as the privacy rights of ordinary citizens not suspected of any crime is routinely violated.

In an interview with Danish media outlet Version 2, Justice Minister Morten Bødskov explained why he continued to defend the law. “Internet surveillance is extremely important to the Danish Security and Intelligence Service in cases concerning economic crimes and child pornography and it will continue to be important as the criminals move their communication online,” he said.

For security reasons, the report from the Danish Ministry of Justice does not mention any cases involving the Danish Security and Intelligence Service, but they do confirm that while logging phone calls has proven useful in their investigations, the value of session logging as a tool for tracking criminals is “very limited.”

Evaluation Postponed

But while Justice Minister Morten Bødskov is finding it difficult to justify his government's surveillance of Danes’ digital habits, he is in no hurry to remove session logging from the data retention law. Instead, he wants to postpone re-evaluation of the law for the third time, for two more years. Bødskov admits that session logging has not been useful to the police, but says that Denmark should wait until the EU has finished its evaluation of the European Data Retention Directive before revisiting its own law.

The Danish telecommunication industry, which bears the expense and responsibility of retaining its subscribers' data, has a hard time coming to terms with Bødskov's argument.

“Right now, the government is awaiting an evaluation from the EU, which might be completed in 2014, before they will even consider removing session logging from the Danish law. This is meaningless. Session logging is not a part of the EU's directive, so it won’t be a part of the evaluation, and the report from the Ministry of Justice clearly states that session logging has zero investigative value,” says Jakob Willer, Director of Telecom Industry Association Denmark.

But last week Bødskov offered his critics a little bit of hope — if not for actual amendment to the law, at least for an end to his ministry's stalling on its re-evaluation.

“If the evaluation [of the European Data Retention Law] from the EU is delayed further, we will initiate an evaluation of session logging in the parliamentary year of 2014-2015,” he said.

Until then the session logging continues.

Torben Olander is a freelance Danish journalist. He lives in Copenhagen.

Personal Democracy Media is grateful to the Omidyar Network for its generous support of techPresident's WeGov section.

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