Electronic Communications Act requires updating

The Chancellor of Justice verified the constitutionality of the provisions that permit a communications undertaking to use and forward the telephone and internet connection data set forth in § 1111 of the Electronic Communications Act to public authorities.

On the basis of the aforementioned section, a communications undertaking preserves the time of communications, the communications equipment, its number and its owner. These data are preserved without observing and recording the content of messages. Any data about the fact of communication can be used by investigative bodies, surveillance agencies and security authorities, a Prosecutor's Office or a court, the Police and Border Guard Board, the Tax and Customs Board, the Financial Supervision Authority, the Data Protection Inspectorate and the Environmental Inspectorate. Unfortunately, the possibility that information about the mere fact of communication could be submitted to the public authorities alone restricts the freedom of communication between people, which is protected pursuant to the Constitution.

The Constitution stipulates that everyone is entitled to the inviolability of private life and the confidentiality of messages. The content of messages may only be observed with the prior permission of a court, if this is necessary for the prevention or detection of a crime. Simply observing the fact that communication took place, and not its content, is also permitted according to other good reasons set out in the Constitution.

Although recording the fact of electronic communication and using it for the protection of public order does not restrict the rights of people as seriously as observing the content of messages, and is therefore not associated with equally strict pre-conditions, it is only permitted if there is no other measure of equal effectiveness and the necessary control measures are applied to prevent abuse.

The Chancellor of Justice is of the opinion that the Act, which requires the recording of information about the fact of communication and permits for this data to be used, is in compliance with the Constitution. Such a measure of protecting public order is necessary in the information society and, of other possible effective measures, it is the one that restricts the rights of people the least. However, it is necessary to introduce stronger control measures to guarantee that the saved information is only used in the manner and for the purposes stipulated by law.

For example, it is necessary to consider the requirement according to which the use of communications data would be tied to a clearer obligation of justification and independent preliminary inspection. Informing people after the use of the communications data should also be considered, as it would give them the opportunity to protect their rights.

Please see full text of the opinion of the Chancellor of Justice in Estonian and Hent Kalmo's article "Meshing of the Constitution with the Charter of Fundamental Rights of the European Union" (journal Juridica III/2016, pp 147-164).