Net Results: New correspondence obtained under the Freedom of Information Act shows that distinct strains have developed between the Department of Justice and other State officials over the proposed Data Retention Bill

The Data Retention Bill would require telecommunications operators to store traffic information about fax, mobile and phone calls, and email and internet usage, for three years - longer than any other EU state.

Data traffic reveals who made and received calls, when, where to, and for how long, with similar information retained on emails and Web-surfing. The content of calls and emails is not preserved. Gardaí say they need the information for investigations.

A set of internal information notes between officials in the Department of Communications, the Marine and Natural Resources, which is charged with supporting the development of a competitive telecommunications and technology infrastructure, shows the Department is not falling for some of the arguments that both the Department of Justice and the Garda have put forward in defence of this Bill.

For example, one information note by a senior civil servant records that the Garda initially told the Department of Communications that a five-year span of retention was necessary for inquiries. This was quickly altered to three years after "informal discussions" with the Department, but the document notes no "particular justification for this period or any statistical information that would indicate this to be the optimum period based on previous experience of gardaí in investigations".

The Data Protection Commissioner, Mr Joe Meade, made exactly the same point at the sole "public" hearing the Department of Justice has held on this deeply worrying Bill (which had a restricted, invitation-only attendance). As Mr Meade said, even the cases cited by the Garda as prime examples of why it needs need this digital information - the Veronica Guerin murder and the Omagh bombing - used data that fell within the boundaries of the time period Mr Meade and every single data protection official across Europe supports - six months (this period is already part of our existing data protection legislation).

In comments made by the Department on an initial draft of the Bill last September, it also takes issue with one of the key arguments made by Minister for Justice Mr McDowell for the Bill - that phone firms had been retaining data anyway for six years under the statute of limitations, (in case a dispute arose over billing in that time), and therefore the material was available to law enforcement. Mr McDowell has disingenuously argued that his Department's proposal of three years of data retention is therefore a great improvement, a sacrifice the Garda is willing to make on behalf of citizen concerns even though they'd really like six years of retention.

The Department takes this argument on. Though it "would seem to imply there was voluntary retention of traffic data by the more established service providers to facilitate access by the Garda and security services... This would not be our understanding, as operators have indicated that such data was retained in light of provisions of the statute of limitations The imposition of a three-year data retention period for the purposes of criminal investigation, etc, is therefore an entirely new concept and should not be portrayed as a mere amendment to existing procedures." Exactly.

The comments on the draft legislation (not yet published, by the way, though the Department of Justice promised Mr Meade that legislation would be in place last autumn) also show the Department of Communications' grave concerns about the effect on Irish and multinational business here, particularly phone and internet service providers, and all internet users.

According to the Department's comments, the Bill "is likely to impose significant costs on \ operators and service providers. This is a matter of considerable concern to the Department in light of the global downturn in the information and communications technologies sector".

A three-year retention period "would impose significant initial capital expenditure costs on operators as well as ongoing expenditure related to operational requirements. This would likely be an additional deterrent to market entry by new service providers. It must also be assumed that additional costs for industry will result in increased costs for subscribers and users".

The comments on the draft Bill also noted that no provision had been made by the Department of Justice to deal with expenses incurred by telecoms operators, although retaining and retrieving data is expensive and may require the development of new systems and will immediately increase the costs of new entrants to the market. Esat/BT estimated earlier this year that the cost of managing call and email data would reach €8.5 million per year per computer server.

The comments recommend that it would be "appropriate and prudent" for the Department of Justice to consult the Office of the Director of Telecommunications Regulation (now ComReg) and the Internet Service Providers Association of Ireland. But according to each, neither organisation was approached until months later, this January.

The impact of this Bill is as central to the State's future economic health as the far more widely discussed 12.5 per cent corporate tax rate. At three years, we have the most burdensome data retention proposal in the EU. We are also blithely considering implementing such an odious piece of legislation under pressure from US law enforcement agencies which have been unable to get a similar retention requirement through the US legislature - because every time, it is vociferously opposed by businesses, for obvious reasons. Why do we continue even to consider this damaging, anti-business, anti-competitive proposal? Why not put that question to your TD and, while you are at it, the Department of Justice.

Karlin's tech weblog: http://radio. weblogs.com/0103966/