Tapping and Data Retention in Ultrafast Communication Networks

• Author: Bart Custers
• Position: Research fellow Tilburg Institute for Law, Technology and Society Tilburg University, 5000 LE Tilburg, Netherlands Senior Consultant Capgemini Consulting Services, 3500 GN Utrecht, Netherlands B.H.M.Custers@uvt.nl
• Pages: 94-100

Page 94

1. Introduction

Government organizations, particularly those engaged in fighting crime and terrorism, have a particular need for personal information. Personal data may help to find out who a person is, whether he poses a risk to society and with what people he is in contact. Such information may play an important role in preventing crime and terrorism, as well as in solving or reconstructing in retrospect any such cases that have taken place.

In recent years, crime and terrorism have become more organized. As a result, it is no longer sufficient to investigate and profile individual suspects. There is also now a need to reveal the networks of people where these suspects operate. Gaining insight in who is communicating with whom may bring other suspects into scope, particularly first offenders, who were hitherto unknown to the authorities. In a way, finding out who knows who has become easier in the information age, as communication increasingly takes place via such information and communication networks as phones and the Internet. Tapping these communication lines is technologically straightforward. Telephone tapping is almost as old as the telephone itself. Apart from the term telephone tapping, the term wiretapping is often used to include tapping Internet communication. Nowadays, the term tapping is becoming more common, since this also includes various types of wireless communication networks. In this contribution, the common term tapping is used to indicate the tapping of all forms of electronic and/or digital communication. Communication without any tools such as phones or Internet can also be overheard and or recorded, but is beyond the scope of this contribution.

Data retention is a more recent form of investigating who knows who. Because of the ever-growing storage capacity of information systems, it has become technologically possible to store all communication that takes place over these networks. It is important to note that this is not currently happening, but it can be done. Nevertheless, the secret services in the United States are building large databases with communication data. Echelon is a global electronics communications surveillance system that gathers and processes vast amounts of communication data (Hagar, 1997, Madsen, 1998). Furthermore, in 2002, the US Department of Defense was planning a project known as Total Information Awareness (TIA). This project envisioned the creation of a gigantic government database of personal information, including communication data, to be analyzed under various models to detect patterns and profiles for terrorist activities (Markoff, 2002). When a major news story about TIA broke, civil liberties groups, commentators and politicians voiced criticism. In 2003 the program was renamed Terrorism Information Awareness and it was stated that privacy would be protected, though without specifying how. However, that same year, the US Senate stopped funding TIA (see also Solove, 2004).

In March 2006, the European Union adopted a directive that requires telecom operators and Internet providers in all member states to implement data retention systems for both telephone and Internet traffic. It is Page 95 significant to note that this EU Directive does not require or allow the retention of the contents of any communication. This contrasts to tapping, which focuses on the content of any form of communication. Data retention focuses on the storage of call detail records of telephony and Internet traffic and transaction data. Basically this concerns phone calls made and received, emails sent and received and web sites visited. These data provide an idea of who is in contact with whom, when, and how frequently. When possible, further identifying information may be added, as well as location data.

With the rise of new technologies and the ever-increasing volumes of information being transferred, new security issues arise regarding tapping and data retention. In the past decades there has been a significant increase in communication between people. At the same time there has been a significant increase in data storage and analysis relating to this communication. This raises the question of how these technological developments influence the potential of tapping and data retention.

This contribution will provide a brief overview of current use of tapping and data retention that will provide an answer to the question above and make some suggestions on how to deal with these new developments. In Section 2, the technological developments regarding ultrafast communication networks will be discussed briefly. In Sections 3 and 4, tapping and data retention will be discussed, respectively. How tapping and data retention works in ultrafast communication networks and what effects this may have will be explained in more detail in these sections. In Section 5, (European) privacy legislation will be discussed briefly. In Section 6, conclusions will be drawn and some suggestions will be made on how to deal with these effects. The focus will be on the developments in the EU and US.

2. Ultrafast Communication Networks

Technological change is exponential. According to Moore's Law, the number of transistors on an integrated circuit (a 'chip' or 'microchip') for minimum component cost doubles every 24 months (Schaller, 1997). This, more or less, implies that storage capacity doubles every two years or that data storage costs are reduced by fifty per cent every two years. Gordon Moore's empirical observation was made in 1965; by now, this doubling speed is approximately 18 months. Moore's Law deals with storage capacities, but similar observations have been made for communication speed and volume. According to Gilder's Law, the total bandwidth availability of US communication systems has tripled every twelve months since the 1980s and will expand at the same rate for the next 30 years to come (Raessens, 2001).

Moore's Law is not only about making existing technologies more efficient. It also takes into account the new ideas and inventions in the field of information technology. The latest developments to increase the speed and volume of transferring information on communication networks are focused on changing from electronic communication to optical communication. This is likely to result in a significant increase in the speed and volume of information transfer on communication networks. This new type of communication is referred to as ultrafast communication (Miller, 2004). In order to achieve all-optical networks, efforts are being made to develop and introduce optical communication hubs. Many optical fibers are already used for communicating optical signals over longer distances, but there are currently no optical alternatives for many electronic building blocks, such as flips flops, gates, buffers, memories, shift registers, and transistors.

Optical communication is not the only method for ultrafast communication. Wireless communication, using electromagnetic waves, is also considerably faster than electronic communication systems. The speed of wireless networks is often slowed down because wireless networks may involve electronic transmission at both ends of a data transmission. The development of all-optical building blocks will overcome the limitations for ultrafast communication systems.

3. Tapping

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