DAVID – Archiving e-mail

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DAVID – Archiving e-mail

DAVID Archiving e-mail

messages over the company network and stored the message in (even!) personal folders did not have a

reasonable expectation of privacy regarding those messages.

The fact that the U.S. never had an explicit constitutional protection of telecommunication and the fact

that this is only a deduced right are probably no strangers to this.

3. Directive 97/66/EC concerning the processing of personal data and the protection of

privacy in the telecommunication sector 43

The principle of secrecy of telecommunication is also protected on the European level by Directive

97/66/EC. This Directive turned the principles of Directive 95/46/EC (the Privacy Directive: see further)

into specific rules for the telecommunication sector. The Directive originated in the greater troubles that

occurred regarding the automated storage and processing of personal data in the telecommunication

sector, and also to harmonise the different rules in the Member States in order not to hamper the

functioning of the internal market. The Directive obliged the Member States to use national legislation to

guarantee the confidential nature of communication and related personal data. They should forbid any

monitoring, wiretapping, storing or any other interception or control of the communication and related

personal data by persons other than the users, if these persons have not given prior consent (Article 5 of

the Directive). The aim of this stipulation was to protect the secrecy of telecommunication specifically

for the telecommunication sector according to the E.C.H.R. and according to the different constitutions

of the Member States. For an organisation’s storage of e-mail this implies that the archivist or the records

manager needs prior authorisation of the e-mail communication partners. It is difficult however to

determine how to get the communication partners’ permission. Sometimes it is difficult to find out who

are those communication partners, for example if the addressees are all mentioned in Blind Carbon Copy.

The solution could be a fixed, obligatory clause at the bottom of the e-mail that clearly informs that this

e-mail could be viewed or controlled for archivin g purposes. This is still no solution for those e-mails

that one receives and that are still records that need to be stored.

Directive 97/66/EC is currently being reviewed in the light of the adaptation of the current rules

regarding new and foreseen developments in the field of electronic communication services and

technologies. The European Commission’s aim is to make the Directive 97/66/EC technology-neutral via

the new proposal 44 . To achieve this, a number of terms are clearly defined in the draft Directive, for

example “traffic data”. In the current Directive 97/66/EC Article 6 about personal data only applies to

“calls”, strictly interpreted only referring to so-called circuit linked connections (such as traditional

speech telephony) but not to package linked transmission (such as use of the Internet). It is not

technology-neutral to protect traffic data that stems from the set-up of a traditional telephone call but not

the similar data that stems from the process of Internet communication such as e-mail. When introducing

the definition of “traffic data” the European Commission considered it necessary to also protect the

43

44

Official Journal, L 24, 30 January 1998, 1,

http://europa.eu.int/eur-lex/en/pri/en/oj/dat/1998/1_024/1_02419980130en00010008.pdf

Common point of view regarding the draft Directive concerning the processing of personal data and the privacy

protection in the sector of electronic communication, 21 January 2002.

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