§ The Minister of State, Home Office (Baroness Scotland of Asthal)The voluntary code of practice for retention of communications data under Part II of the Anti-terrorism, Crime and Security Act 2001 came into force on 5 December 2003, pursuant to the Retention of Communications Data (Code of Practice) Order 2003 (SI 2003/No. 3175). Paragraph 33 of the code requires that its effectiveness would be assessed, against criteria identified in the code, three months from the date it received parliamentary approval. The review period, which began on 5 March 2004, will assess the code against the criteria:
- has it improved investigative work;
- how many requests for data have been made;
- is the voluntary scheme working;
- what percentage of the market is covered by communication service providers who have adopted the code of practice;
- are sectors of the industry, which have not adopted the code, enjoying an unfair commercial advantage?
The voluntary scheme is working in the sense that there are a number of communications service providers that have volunteered, or are volunteering, to retain communications data in line with the code. However most of these volunteers need to prepare themselves, in technical terms, to be able to do so. Consequently it is still premature to evaluate whether investigative work has been facilitated by the voluntary retention of communications data in line with the code or to determine what data has been acquired by investigators that was available only because of its voluntary retention in line with the code.
24WSAlthough communications service providers are volunteering to retain data in order to support the important task of safeguarding of national security, service providers are sensitive to any commercial impact from being identified as volunteers. The Government shall not be identifying providers that have volunteered or are indicating a likelihood of volunteering. Equally there are no indications that sectors of the industry, which have not adopted the code of practice, are enjoying an unfair commercial advantage.
We do not believe, at this time, that identifying the volunteers' precise share of the communications service market is helpful, since it could enable deductions to be made, accurately or inaccurately, about which providers have volunteered. However the Government are confident that a significant proportion of communications data is being retained in line with the code.
Once the volunteers are able to indicate that they are retaining data in line with the code, it will be possible to conduct a more thorough evaluation of the effectiveness of the code.
The Government are keeping the issue of retention of communications data under review in the context of the recommendations of Lord Newton's committee, which reviewed the Anti-terrorism, Crime and Security Act 2001, and the declaration of European Council on 25 March 2004 that proposals for establishing rules on the retention of communications traffic data be examined by the Council with a view to their adoption by June 2005.
In the mean time, the voluntary code of practice remains in place and the Government are continuing to engage with service providers which are considering whether to volunteer.