From Haezreena Begum Abdul Hamid
From both legal and criminological perspectives, timely access to communications metadata such as call logs, IP addresses, and geolocation data is vital in addressing serious crimes including cyber fraud, child exploitation, and terrorism.
From a legal perspective, this access ensures evidence is lawfully obtained, preserved, and admissible in court, while meeting due process requirements and enabling urgent investigative action before critical data is lost.
From a criminological perspective, quick access supports rapid suspect identification, disruption of criminal networks, and protection of victims, particularly in fast-moving, technology-driven offences where even short delays can mean missed opportunities to prevent harm or secure convictions.
A standardised data retention, preservation, and disclosure framework across all service providers would address existing inconsistencies, close evidentiary gaps, and ensure all providers operate under the same statutory obligations and safeguards.
Legally, this would also reduce disputes over admissibility and jurisdiction.
Criminologically, it would streamline processes, minimise delays, and ensure timely access to critical evidence, increasing the likelihood of disrupting criminal activity and securing convictions while maintaining public trust.
International experience demonstrates the value of such frameworks.
For example, the European Union’s former Data Retention Directive (2006/24/EC) provided uniform retention rules across member states, enabling faster cross-border investigations in organised crime and terrorism cases before its annulment.
In Australia, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 mandates two-year retention of certain metadata, which law enforcement agencies have reported as pivotal in solving cybercrime, child exploitation, and counter-terrorism cases.
These examples show that harmonised frameworks can both improve investigative efficiency and protect public safety, provided they are coupled with robust safeguards and oversight.
Tools to address cyber-enabled crimes
The proposal by the Malaysian Communications and Multimedia Commission (MCMC) to establish such a framework is a timely step in the digital age.
As technology evolves rapidly, measures like this are increasingly necessary to equip law enforcement with the tools to address cyber-enabled crimes, provided they are implemented with strong privacy safeguards and clear legal boundaries.
The absence of a consistent or legally mandated framework risks serious harm to public safety.
Legally, it can lead to uneven compliance among service providers, resulting in deletion of critical evidence before lawful access is possible.
This creates evidentiary gaps, undermines prosecutions, and may compromise due process. Criminologically, inconsistent retention hampers timely investigations, delays suspect identification, and enables offenders, especially in cyber-enabled crimes, child exploitation, and terrorism, to exploit providers with short or non-existent retention policies as safe havens.
Lost leads weaken individual cases and reduce law enforcement’s ability to dismantle criminal networks, prevent reoffending, and protect victims.
Privacy concerns are valid, but safeguards such as authorised access, judicial oversight, and limiting retention to metadata can strike a reasonable balance if clearly codified, strictly enforced, and independently reviewed.
Legally, these measures ensure proportionality, targeting, and lawful use of data solely for legitimate law enforcement purposes, reducing the risk of mass surveillance or arbitrary intrusion.
Criminologically, retaining only metadata while requiring formal authorisation for access preserves investigative value while maintaining privacy protections and public trust. This balance depends on strong oversight, genuine restriction to serious offences, and retention periods no longer than necessary.
Opposition to such a framework often arises from fears of overreach, inadequate safeguards with misinformation portraying metadata retention as equivalent to content interception.
Distrust can also be rooted in broader perceptions of government legitimacy, particularly in communities that feel over-policed or unfairly targeted.
Regulators and independent experts should therefore address these concerns through transparent, accessible explanations of the framework’s scope and limits, emphasising judicial oversight, limited scope, and strict access controls.
Independent audits, public reporting on usage, and case studies showing how timely metadata access has prevented harm can help ground the debate in facts.
Engagement with civil society, privacy advocates, and the technology sector through open consultations is essential to counter fear-driven narratives and foster informed public understanding.
Clear statutory framework
Data preservation and retention play a critical role in criminal cases beyond immediate investigations.
From a legal perspective, a clear statutory framework is needed to define which types of data can be preserved, such as call logs, IP addresses, and location data, and to set applicable retention periods for service providers.
Timely preservation orders prevent the loss of ephemeral evidence, while a secure chain of custody ensures integrity and admissibility in court.
Judicial oversight and proportionality safeguards guard against overreach, and effective cross-border mechanisms, such as mutual legal assistance treaties, facilitate lawful access to foreign-held data.
From a criminological standpoint, timely access to preserved data can enhance investigations in fast-moving cases, support long-term pattern analysis, link offences and offenders, and enable intelligence-led policing.
Robust preservation mechanisms can also deter offences by reinforcing the certainty of detection.
In victim-focused cases, such as stalking or harassment, preserved communications provide vital evidence for protection orders and risk management.
However, over-retention risks eroding public trust, making it essential to balance effective crime control with civil liberties through standardised procedures, secure storage, rapid request mechanisms, legal safeguards, and strong international cooperation.
Ultimately, data preservation and retention are indispensable tools for modern law enforcement, but they must operate within a framework that is proportionate, transparent, and rights-respecting.
I encourage members of the public to actively participate in MCMC’s ongoing public consultation on this proposal so that the regulator can consider diverse perspectives, address legitimate concerns, and consider improvements to the framework where necessary.
Haezreena Begum Abdul Hamid is a criminologist and senior lecturer with Universiti Malaya’s law faculty.
The views expressed are those of the writer and do not necessarily reflect those of FMT.
