The market needs long-term sustainable rules for data retention

The retention of operators' data for law enforcement purposes is an issue that has been fraught with legal uncertainty for many years, with the European Commission taking Sweden to the Court of Justice of the European Union, several government inquiries being carried out and government decisions being overturned after a court case in Sweden. The many twists and turns show the difficulty of finding a regulatory framework that balances the authorities' need for access to data to fight crime and fundamental rights regarding personal privacy in an increasingly digitized society. Uncertainty becomes a major problem when the market players who have to comply with the regulations cannot be sure of what applies in the long term.

A government inquiry, Data Storage and Access to Electronic Information, was appointed in August 2021 to, among other things, review the current regulatory framework in relation to new case law from the European Court of Justice. The inquiry has now been on reply to public consultation and TechSweden's assessment is that there is an obvious risk that the inquiry's proposals are not compatible with the rulings of the European Court of Justice that have prompted the inquiry. Proceeding with the inquiry's proposals risks leading to a future regulation being declared invalid, with the consequence that all the time and money that needs to be invested to meet the requirements of the legislation will be wholly or partly wasted. This is a far cry from the long-term approach and predictability that is required and which forms an important basis for the development of a digital Sweden.

TechSverige therefore urges the government not to proceed according to the inquiry's proposal but instead to continue the work begun during the EU Presidency with an expert group on access to data for effective law enforcement. An EU-level solution can ensure that users' data are subject to uniform and strong protection, avoid conflicts between different national rules and ensure the efficiency of the EU internal market. It would remove uncertainty and mean that actors in Sweden do not have to bear disproportionate costs for repeatedly developing new technical solutions and working methods.

Robert Liljeström
Business policy expert

Read TechSverige's response to the report: Data storage and access to electronic information