MP' demand the Constitutional Court puts and end to citizen snooping

9. 4. 2010 | 23:00

Forty six Members of Parliament from the Civic Democratic Party lead by Marek Benda and one MP from the Green Party, Katerina Jacques, have signed a petition to the Constitutional Court drafted by the watchdog NGO Iuridicum Remedium (IuRe). The draft aims to stop the retention of data such as e-mails, internet use, phone calls and sms communication.

After a great success in neighboring Germany, where on 2 March the Constitutional Court ordered immediate deletion of all the data stored under legislature originating in the so-called Data Retention Directive (2006/24/EC), Czech citizens have now also turned to the Constitutional Court to prevent snooping in citizens' communication. "We've come up with a draft to put Paragraphs 3 and 4 of Section 97 of the Electronic Communications Act and the regulation No. 485 / 2005 Coll. implementing the Act, which give the legal frame for data retention, through a constitutional review. Our initiative was backed up by MPs from the Civic Democratic Party and by Katerina Jacques and thanks to this we can address the Constitutional Court," says Jan Voboril, lawyer at IuRe.

Logs of e-mails, calls, sms messages and internet use are kept in the Czech Republic "just in case" since 2005 for a period of six months. Police, intelligence agencies and other have access to the databases. The snooping was introduced by the Electronic Communications Act in 2005, anticipating the afore mentioned European Directive. A constitutional review of this law could put an end to eavesdropping on people's communication.

At the end of 2008 and in October 2009 respectively, Constitutional Courts in Bulgaria and in Romania overturned relevant Sections in similar laws. The German Constitutional Court's decision brought great expectations, because on its 2 March session it scratched the current German data retention law and ordered that stored personal data must be deleted. It also provided requirements which a new data retention legislature has to comply with to be constitutional. Data my be held for a maximum period of six months and it has to be stated clearly for the investigation of which crimes such data are going to be used. Very strict rules have to be introduced for the protection of gathered data and citizens have to be informed whenever an administrative body requests their data. In certain circumstances (such as getting in touch with an attorney or with a priest) use of held data will be against the law even if the conditions are given. Czech citizens have similar rebukes against data retention. "A measure originally introduced to fight terrorism is today misused to widely snoop on people. The Constitutional Court has now the chance to decide how far can European law interfere," says Marek Benda.

In 2005 IuRe criticized the draft of the Electronic Communications Act, about which its submitter proclaimed it is a rather simple bill and that its eventual rebuff would mean "serious negative consequences from the perspective of Czech Republic's obligations from its participation in the international fight against terrorism". In November 2005 IuRe joined the pan-European initiative started by the German Task Group against Communication Data Retention. The Ministry of Industry and Trade tried to submit an Amendment to the Electronic Communications Act that would give access to kept logs of calls and e-mails to the counter-intelligence and Intelligence service BIS and to the Military Intelligence service. The Ministry stopped its efforts after a negative reaction from media and some politicians; however intelligence agencies gained access through a "back door" in the new Police Act. In recent time another Amendment was submitted to the Chamber of Deputies which would provide the BIS with access to data retention databases.
Main concerns with the existing Data Retention legislature
Communication data of all persons are nation-widely gathered without suspicion of crime. This can be seen as a breach of the proportionality principle in so far that the extent of breach of the right to privacy is far more higher than the real possibility of using these data to accomplish given goals (crime, terrorism fighting, etc.).

Rules for accessing operational and localization data are not clearly stated. The extent of crimes for the investigation of which administrative bodies are allowed to use data is not limited and no special protection for particularly sensitive types of communication is given (such as calls with an attorney). The Police are not required to obtain a court's permission, contrary to wiretapping, which is a similar breach of the right to privacy. Persons, whose data have been exploited in this way, may never even find out about this and so they can not defend themselves.

Communication monitoring can lead to excessive state interference into citizens' privacy. Operational and localization data can be used not only for analyzing social networks and a person's behavior and movement in the past, but also to exactly anticipate behavior in the future. They can be misused for example in political rivalry to fight against the opposition, and to effectively restrain not only the right to privacy, but even additional human rights.

Despite the original goal of the legislature being the fight against terrorism, with a certain effort it is still nevertheless possible to communicate anonymously.

Contact:
Jan Voboril
Iuridicum Remedium, o.s.
iure@iure.org

This press release was written as a part of the Project "Reclaim Your Rights in the Digital Age", which is realized thanks to the financial support of the Trust for Civil Society in Central and Eastern Europe.
 

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