The current “Draft Rulebook on technical requirements for equipment and software for legal interception of electronic communications and keeping data on electronic communications” generated a re-run of the “uproar” which the Draft Bill on Electronic Communications caused in the summer of 2010.At that time, the Commissioner for Information and Protector of Citizens, and the expert community in particular, reacted to the Draft Bill which was submitted in haste and with no public discussion at all. The Bill was adopted in the end, with some improvements, but contains numerous shortcomings. The President of the Republic, signing the Bill, stated that “as the database on citizens’ electronic communications will be accessible to security authorities and the police without a court decision”, he “shares concerns with independent public institutions, the Protector of Citizens and Commissioner for Information of Public Importance and Personal Data Protection”, and that is why “after adopting this Bill, it is more than warranted to re-examine and improve relevant elements of our legal system to ensure balance is maintained between the right of citizens to security and all their other rights.”
This outcome provided some hope that in the future, interception of electronic communications might be regulated in a much more serious manner.
At the end of September of 2010, the Commissioner for Information and Protector of Citizens 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.
The main reasons for disputing the constitutionality of some provisions of these laws was 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.
Laws regulating the operation of the police and the Security Intelligence Agency (BIA) were not included in the application for assessment of constitutionality, as we could not identify the specific provision which is inconsistent with the Constitution. BIA and the police engage in the this practice, but do not base it on any specific provision of the law, applying an “interpretation” affirming that call listings, location of user and other elements of communication are not included in the term “communication”, and therefore not protected by provisions of Article 41(2) of the Constitute. This “interpretation” is unacceptable, as 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.
The Constitutional Court still has not decided on this Application submitted by the Commissioner and the Protector of Citizens, although almost a year has passed. This is unfortunate, as the current Draft Rulebook again brings to the fore and additionally aggravates issues which prompted the initiative to be submitted to the Constitutional Court in the first place.
In the Draft Rulebook, “Court Decision” as a term is not even mentioned! The only term used is an imprecise term with multiple meanings “Order”, whatever that may be.
The virtually unlimited opportunity, acting on an opinion which is not subject to court appraisal, for an undetermined, but certainly large number of employees of security agencies to issue “orders” and 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.
In addition, the Draft Rulebook does not include any provisions on existence of special database containing indelible traces of who, when, why and on what ground has accessed kept information, which deprives the sense of any idea, even a posteriori, of control of justification and legality of such access. The fact that these provisions were included in the former Rulebook of RATEL (Republic Agency for Electronic Communications) raises a question – Why were they omitted? It is not sure whether a meaningful answer to this question is possible to be given, but it is certainly from the point of human rights that the absence of this answer is a cause for concern.
There are quite a few similar unresolved issues, and space and time restrain me from listing them further. They are all important, and it would be risky and damaging to resolve them facetiously. This is why I proposed to the Ministry of Culture, Media and Information Society to adjourn the adoption of the Rulebook, and instead of formal consultations, hold a genuine public discussion, inviting competent representatives of the academia, media, civil society and electronic operators to participate, face them and present their answers to various questions – in order to at least try to resolve important matters in a remotely responsible manner.
