Tel-Aviv District Court Finds No "Right to Forget"
As reported by Dan Or-Hof, Manager of the Information Technology, Internet and Copyright group at the Israeli law firm of Pearl Cohen Zedek & Latzer, in a first of its kind decision, the Tel-Aviv district court ruled on November 30, 2010 that a subscriber of cellular services does not have a general right to have his phone records deleted.
Cellular providers maintain and store, as a general practice, a record of the calls made by their subscribers. The phone records include lists of phone numbers called, received calls, call durations and calls dates and time.
The right to privacy is a fundamental (semi-constitutional) right under Israel's Freedom and Human Dignity Basic Law. In addition, the Privacy Protection Act sets a balance between the right to privacy and other rights and legitimate interests and regulates data protection. The Act provides, in relevant part, that a person may use data stored in a database the person owns only if (i) the database is lawfully registered and (ii) any use of the data is consistent with the database’s registered purposes.
The plaintiff, Amir Liran, a subscriber of two cellular providers (Pelephone and Partner), filed a civil action against the providers, on grounds that they unlawfully retained his subscriber’s phone records for periods of 8 to 10 years, respectively.
The plaintiff argued that cellular providers store phone records for billing purposes only, and as soon as a subscriber pays for the calls he made, the relevant phone records should not be retained. The plaintiff petitioned for the permanent deletion of his phone records.
The defendants countered that they need to retain phone records for lawful business purposes, including for settling accounts with third parties (such as interconnection cross-payments), internal audits, tax filings, future litigation and mandatory reports to the ministry of communications.
Defendants further pointed out their obligation to provide information to law enforcement agencies for investigatory purposes, counter-terrorism and locating missing persons.
The Attorney General, who joined the proceedings, argued that as long as records are kept for legitimate purposes and maintained with an appropriate level of security, there are no grounds for ordering defendants to delete the records. The AG further argued that retaining phone records serves public interest, as it is often required to investigate and to prevent unlawful activities.
The court viewed phone records retention as a potential threat to an individual’s privacy. The court found, however, that data retention has advantages and benefits as well. For example, it allows the subscriber easy access to his records and enhances his ability to monitor the services he uses. Data retention also allows better review of customers’ complaints, and increases consumers’ ability to file class actions. The court also found that the retention of subscriber data provides factual basis and findings for studying trends in the use of cellular services and supports law enforcement activities.
The court ruled that plaintiff did not prove, or even argue, that defendants used the records in a manner inconsistent with the registered purposes of their databases in violation of the Privacy Protection Act. In light of the above findings and the benefits of records retention, the court dismissed the complaint.
Notably, in its ruling, the court made clear that the scope and duration of data retention is a matter that requires separate review. Thus, the court’s decision may serve as a starting point for a meaningful discussion of the rationale and justification for data retention and the need to balance data retention with the right for privacy and self-autonomy.
The case is CP 1994-06 Amir Liran v. Pelephone Communications Ltd. and Partner Communications Ltd., delivered by the Tel-Aviv District Court on November 30, 2010.