Last week I participated in yet another workshop on traffic data retention, in ICRI, with the added twist that now traffic data retention is in ‘European Law’, and shall become actual law in most EU countries very soon. It was a special treat to be talking just after Chief Superindendent Luc Beirens, Head of the Belgian Federal Computer Crime Unit, that tried to sell the idea of retention to a crowd of people from the flagship EU privacy project PRIME.

As usually Beirens assured us that proper judicial oversight exists and will regulate access to traffic data. Yet a different pictured emerged when we got into the details of how cyber-crime investigations are conducted. It turns out that the first thing that the police does, to the suspects but also the victims, of cyber-crime is to take a forensic image of their hard disk. This is a sound precaution: booting up the machine to extract evidence may activate malware on a victim’s machine to erase traces, or an alert system on a suspects computer.

The obvious question becomes: how does this policy of automatic forensic imaging and analysis of a hard disk interacts with traffic data retention? Luc was keen to acknowledge that the investigation procedure would proceed unchanged, and an image of a hard disk that may contain retained data would be taken — and forensic tools used on the totality of the hard disk. To be fair, tools that take a forensic image or only look at parts of the disk according to a set security policy do not exist.

What does this mean? If you are a victim of cyber-crime, or a company you have given your data to is a victim of cyber-crime, all the data will end up with the police. This will be the case irrespective of judicial oversight, or any other safeguards. You may ask yourself what the chance is that the retained data will be kept of a computer that maybe part of an investigation? First do not underestimate the fact that these machines will end up on-line to serve requests, and therefore will be subject to their fair share of attacks. But most importantly this case will obviously occur as part of an investigation on themisuse, unauthorized access, or attempted access to the traffic data retention systems!

This standard procedure may also explain why companies are so reluctant to call in the high tech crime units to help them investigate cyber-crime. Their procedures are simply incompatible with any security policy with a confidentiality component. Would you report some of your documents being stolen from your home or business, if this meant the police taking a copy of every single paper in the building?