Legal interception of electronic communication

The wide usage of electronic communication in business and everyday life of citizens sometimes involves security threats. Therefore, in Serbia, as well as in other countries, under certain conditions it may be necessary to perform legal interception and storage of information that is part of electronic communication.

This possibility is regulated by articles 126, 127, 128, 129 and 130 of the Law on Electronic Communication. During the debate about the Law, the constitutionality of these articles of the Law was questioned because they threaten the confidentiality of electronic communication and privacy of citizens, which are constitutional rights.

The National Parliament adopted the Law in July 2010. At the same time, the President of the Republic said that "it seems that the balance between privacy of citizens and security has been upset".

A year ago, the Protector of Citizens and the Commissioner for Information of Public Importance and Protection of Personal Data initiated a procedure for judgment on constitutionality of certain provisions of the Law on Electronic Communication. In August of this year, acting in accordance with its obligations resulting from the Law and its implementation, the Ministry of Culture, Informing and Information Society prepared the "Proposal of the Rulebook on Technical Requirements for Devices and Software Support for Legal Interception of Electronic Communication and Storage of Electronic Communication Data" and offered it to be publicly discussed.

Almost all of the participants in the public discussion have criticized the Rulebook and their comments are almost identical to those which were made during adoption of the Law on Electronic Communication by the National Parliament. The proposed Rulebook and comments of the participants in the discussion are available at the web site kultura.gov.rs, while the audio recording of the discussion is available at the web site of the Media Center.

Better understanding of the discussion requires clarification of some of the basic terms used in the Rulebook.

"Legal interception of electronic communication" constitutes secret surveillance of electronic communication services, activities and traffic served by telecom providers. Secret surveillance of communication content includes all forms of communication (speech, texts, video, data transfers etc.) between the subjects of the secret surveillance and other users of electronic communication services.

"Providers' obligations" constitute the obligation of providers to deliver information or to allow access to communication made by the subjects who are the targets of secret surveillance, at the request of authorized state bodies.

"Legal interception of electronic communication" is performed by authorized state bodies or organizations.

The public and professionals welcomed the fact that the Rulebook was offered to be publicly discussed, but at the same time the participants in the discussion have emphasized the questions that the proposer should answer before the adoption of the Rulebook, and pointed out the problems that might arise if some of these questions are ignored. The main critical comments are as follows:

Limiting of constitutional rights
Most of the participants in the discussion are of the opinion that the Law on Electronic Communication, as well as the Rulebook, limit the citizens' right to guaranteed confidentiality of letters and other forms of communication as stipulated by the Article 41 of the Constitution of Serbia and the right to guaranteed protection of privacy of personal data as stipulated by the Article 42 of the Constitution of Serbia. The Protector of Citizens, Sasa Jankovic, said that "laws cannot limit the constitutional rights of citizens". Representatives of the Judges' Society of Serbia pointed out that there was no legal basis for secret surveillance of users' location or location of mobile equipment with the aim to illegally discover the location of users. It is expected that the Constitutional Court will quickly make a verdict on constitutionality of the aforementioned provisions of the Law on Electronic Communication and create conditions for possible modification of the Law and completion of the preparation of the Rulebook.

Warrant for legal interception of electronic communication
In accordance with the Law, and as prescribed by the proposed Rulebook, providers are obliged to follow the orders from authorized state bodies, enable legal interception of electronic communication and provide information about the content of communication. What is the legal basis for such warrants? Participants in the discussion emphasized that the only basis for warrants can be a court order. Some of the participants mentioned cases when warrants were issued without a court order and pointed out the danger from abuse of the right to legal interception of electronic communication. It was proposed that the Rulebook should contain words "court order with specified name of the court" instead of the words "warrant issued by authorized body". It was suggested that an external control body should be established that would verify legal validity of issued warrants for interception of electronic communication. It was also demanded that a legal provision should be introduced stipulating that the database on intercepted communication cannot be deleted, including the information about documents that served as a basis for issuance of warrants. This would allow verification of legality of interception of electronic communication at any time.

Equipment in the surveillance center
The Law and the Rulebook stipulate that the providers are obliged to provide, improve and maintain equipment and software that would allow legal interception of electronic communication at their own expense. Representatives of providers pointed out that such steps would increase their operating costs and that they would have to pass such costs on to their customers. Providers were of the opinion that such equipment would be used by security bodies only and that they should purchase and maintain it themselves. It was also mentioned during the discussion that providers in the European Union have not been required to purchase equipment for such purpose, and that the title of the Rulebook and its content were not compatible. Instead of stipulating technical requirements, the Article 27 of the Rulebook says that the authorized state body for interception of electronic communication will specify the necessary equipment for each provider individually.

Further steps:
The Constitutional Court is expected to rule on the constitutionality of the disputed provisions of the Law. At the same time, the proposers of the Rulebook are expected to reply to proposed opinions and suggestions.

It would be desirable that the competent state body for legal interception of communication issue a statement clarifying whether a valid court order is required for issuance of the warrant for legal interception of electronic communication.

It is important to note that the public has recognized a realistic danger of violation of the right to confidentiality of communication and protection of personal data.

Clarifications and answers to questions from the public discussion are necessary in order to reduce the possibility of abuse and arbitrary interpretations.

In fact, most of the complaints related to the Rulebook constitute criticism of the Law itself.

Nikola Markovic

About the authors

MC Newsletter,
August 26, 2011