Romanian Comm Ministry Redrafts Data Retention Law, Ruled Unconstitutional In 2009

The ministry is attempting to avoid the infringement procedure started by the European Union against Romania.

The data will allow the tracking and identification of a transmission's source and destination, its date, time and duration, its type, the equipment used and its location, and may be provided to judicial bodies on request "immediately, but for no longer than 48 hours [since the request]," according to a bill drawn up by the ministry and published Thursday. After that period, every piece of data provided to the authorities, except that retained according to law, must be destroyed irreversibly.

"This law does not apply with respect to the transmission's contents or the information acquired during the use of an electronic communications network; the criminal procedure code and relevant laws apply in such cases," says the act.

The ministry's bill is based on Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, adopted in March 2006.

The directive requires electronic communication services suppliers to create databases and store this information for 6-24 months, subject to certain conditions provided by the directive. It was to be transposed into national legislation by September 15, 2007.

Romanian authorities failed to abide by this deadline, so on November 27, 2007, the European Commission sent Romania a letter regarding the launch of the first phase of the infringement procedure, and on September 23, 2008, a reasoned opinion asking Romania to take the necessary measures to align with the community acquis.

Following this reasoned opinion, the Parliament adopted Law 298/2008 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, and amending Law 506/2004 on the processing of personal data and protecting privacy in electronic communications.

Later, in October 2009, the Constitutional Court found that Law 298/2008 was unconstitutional. The law was repealed. Several NGOs had asked the Ombudsman to notify the Constitutional Court about the law.

The Commission has begun new action against Romanian authorities, by sending a letter on June 16 this year, asking for the measures to be taken to transpose the directive, within two months.

To avoid moving to the new step of the infringement procedure, the ministry has drafted this new version of the bill. It is up for public debate on the ministry's website for 30 days.

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