Five years ago data retention directive was adopted, introducing mandatory retention of the telecommunications of all citizens and resident of European Union. Since that time privacy movement against data retention in many European states has risen, national constitutional courts in Romania, Czech Republic and Germany have declared data retention laws illegal and case against directive is pending before the Court of Justice of the European Union. Civil society representatives, including Katarzyna Szymielewicz (Panoptykon Foundation), discuss problems regarding data retention directive, its evaluation and actions taken and needed to be taken to change European law in accordance with human rights.

The Polish digital rights group Panoptykon Foundation recently published harrowing findings regarding abuses of Poland’s mandatory data retention law. Using a Freedom of Information Act request, Panoptykon obtained documents that reveal that in 2011, Polish authorities requested users’ traffic data retained by telcos and ISPs over 1.85 million times — half a million times more than in 2010. These findings underscore fundamental flaws in the Polish mandatory data retention law that was fast-tracked in legislation without public debate in 2009.

This paper is aims to give a brief overview of the following issues: (i) Polish data retention regime and its drawbacks; (ii) the use of data retention in practice and available
data on the subject; (iii) campaign run by the Panoptykon Foundation over last two years; and (iv) political shifts that occurred in Poland.

Data retention obligation will not be further extended in Polish law on electronic communication. However, the current, unlawful scope of telecommunication data retention remains unchanged. Our advocacy effort proved successful.

Polish government’s proposal for a new law on “protecting free speech of social media users” introduces data retention, a new, questionable definition of “unlawful content”, and an oversight body (Free Speech Council) that is likely to be politically compromised. In this context, “Surveillance and Censorship Act” would be a more accurate name.