The Commissioner for Information of Public Importance and Personal Data Protection forwarded today his opinion on the Draft Rulebook on technical requirements for equipment and software for legal interception of electronic communications and keeping data on electronic communications to the Ministry of Culture, Media and Information Society.

Stating that some solutions from this bylaw are extremely important from the point of view of possible violations of basic human rights, the Commissioner proposed to the Ministry to extend public consultation period on this bylaw, to hold a genuine public discussion, instead of consultations, inviting competent representatives of the academia, media, civil society and electronic operators to participate.

In this regard, the Commissioner Rodoljub Sabic said following:

„The Draft Rulebook again places stress on, and even additionally aggravate, issues which were the reasons why the Commissioner, together with the Protector of Citizens, as far back as 30 September 2010, submitted an Application for assessment of the constitutionality of this Law, as well as the Law on Military Security Agency (VBA) and Military Intelligence Agency (VOA) to the Constitutional Court of Serbia.

We disputed the constitutionality of some provisions of these laws because the fact that they propose an option to disregard confidentiality of means of communication not only on the basis of a court decision, as it is expressly stipulated in Article 42 (2) of the Constitution of the Republic of Serbia, but also without a court decision– when such an option is provided by the law, or at the request by a competent public authority.

The Draft Rulebook further expands this option. In the Draft Rulebook, “Court Decision” as a basis for access to so-called “information kept” as a term is not even mentioned! The only term used is an imprecise term with multiple meanings “Order”.

The virtually unlimited opportunity, acting on an opinion which is not subject to court appraisal, for security agencies to access information on who and when communicates with whom, during what time periods, and using which type of connection and from which location, is an extremely serious deviation from the constitutional guarantee of sanctity of letters and other means of communication. The constitutional guarantee, apart from the contents of communication, most certainly applies to “information kept” as an integral part of said communication, a fact confirmed, among others, in rulings of the European Court of Human Rights in Strasbourg.

In addition to the above mentioned, the Draft Rulebook also introduces some new measures and categories such as covert surveillance of user location, whether or not he is involved in communication, or subsystems for protection of “specially protected users”, that cannot be regulated in this Rulebook, as there have no legal basis in the Law on Electronic Communications.”