28. 07. 2008

COMMISSIONER FOR INFORMATION OF PUBLIC IMPORTANCE ON RATEL'S TECHNICAL CONDITIONS

Commissioner for Information of Public Importance, Rodoljub Šabić, made the following statement for the "Beta" News Agency to comment on the decision of the Republic Agency for Telecommunications (Republička agencija za telekomunikacije, RATEL) that defined and adopted the Technical Conditions for Sub-Systems, Equipment and Installations for Internet Network Document:

„The Technical Conditions for Sub-Systems, Equipment and Installations for Internet Network Document that was recently adopted by RATEL certainly deserves to be seriously taken into consideration, bearing in mind the importance of electronic means of communication today. It is a normative document with individual provisions that can be interpreted in a very broad and different ways, depending on the person interpreting them, which, of course, can never be considered a good thing. Besides that, certain provisions are there to take care of the issues that would certainly be better dealt with, and in fact it would be better justified, if those were handled by means of a legal act, and not with a sub-legal act, as it is the case now. 

It is not debatable that RATEL is authorized to define adequate technical conditions, and it is not debatable that public telecommunications operators have a duty to provide conditions for implementation of those conditions (regardless of whether they are able to bear such a financial burden), since that was prescribed by the law. However, the content of these conditions' provisions is debatable, and it would be good to hear public opinion on these provisions, and before all, the opinion of experts for this field.

The most prominent ones for everybody's attention will certainly be those provisions that prescribe operators' duty to enable "a completely autonomous passive monitoring of Internet activities of their subscribers and also redirectioning of the incoming and outgoing communications" to the relevant services, i.e. the Police of the Security Information Agency officers. Such provisions, that is, the potential of abuse of such provisions, cause sceptical caution, even fear, with many people, including calculation of chances that such or similar provisions could find their way into the rulebooks on terrestrial and mobile telephony.

This fear is probably even more accentuated by the very bad experiences that we had with abuse cases involving security structures and secret services. Sceptical caution has additionally been fed by the fact that we are probable the last European country that doesn't have a Personal Data Protection Act. The issue of personal data protection in our country has been present for a number of years now, and it is no coincidence that valid EU documents have all stated that such protection here is present only in theory and not in practice.

We don't have any functional protection mechanisms, and we also haven't even started to build a predominant mentality based on European democratic standards of privacy and personal data protection. This is why the potential for abuse of these "technical conditions" doesn't necessarily apply only on the relevant state institutions, but also on some other legal entities.

It could also be said that these technical conditions present another example of authorities' frequent moves that come as a complete surprise for the unprepared general public, and even for the experts for the field. It would thus be useful and good if there were some kind of "public debate", post festum even, to hear all the people who could present valid arguments, including here the Ombudsman and the Human Rights Minister, in order to eliminate all potential dilemmas.

Whatever dilemma there might be in relation with the Internet communications monitoring and its interception, one dilemma must certainly be eliminated. It is my opinion that starting from the Article 41 of the Constitution, which guarantees secrecy of letters and other means of communication and defines potential deviations from these rules, exercising of such potential deviations from the rules can be allowed for only and based upon a decision by a Court, for a defined period of time only, and for the reasons and under conditions that are clearly defined by the law.

And of course, even when we eliminate all dilemmas in the abstract or normative level, that doesn't necessarily mean that we have eliminated all the problems in the practical level of usage. Potential threats of abuse of mechanisms that limit human rights require effective mechanisms for human rights' protection. This is exactly why this is an opportunity to accentuate importance and necessity to adopt and implement a modern Personal Data Protection Act. “

Related News:

* ANEM to Condemn RATEL's Technical Conditions Document and Way of Its Adoption (ANEM Statement, July 29th, 2008)