13. 08. 2008

VOJVODINA OMBUDSMAN AGAINST IMPLEMENTATION OF RATEL’s TECHNICAL CONDITIONS DOCUMENT

Novi Sad, August 13, 2008 (Executing Council of the Autonomous Province of Vojvodina) - Internet, first and foremost embodies a way to communicate in order to freely exchange ideas, thoughts and information. However, there is a potential and there have been cases of abuse of the most democratic media. In such cases, there arises the issue of Internet communications monitoring, which automatically brings in the basic dilemma concerning human rights exercising: is it possible to, at the same time, reach a compromise solution in between public safety and security and fight against crime on one hand, and media freedom, freedom to speech and information, on the other hand.

Although the Republic of Serbia Constitution envisages that violation of secrecy for letters and other means of communication is possible only for a defined period of time and based on a court decision, and only in cases when it is necessary in order to conduct a criminal procedure before a court or in order to provide security for the Republic of Serbia, the Telecommunications Act is, in its Article 55, much more lenient with regard to the set of criteria that have to be met in order to limit the secrecy of personal messages conducted through the telecommunications networks in a legal way. Limitations of message secrecy according to this Act are possible not only in cases when court orders have been issued, but also when such “activities are carried out according to law”. Based on such formulation, it could safely be concluded that limiting the right to secrecy of private written communication, when prescribed by any legal act even in cases when no court order has been provided, could be permissible and acceptable, which is altogether unthinkable.

Technical Conditions for Subsystems, Equipment, and Installations of Internet Network Document was adopted by the Republic Telecommunications Agency, in spite of the fact that a provision contained in the Article 55, Paragraph 3 of the Telecommunications Act clearly has envisaged cooperation between the Agency and telecommunications providers and operators in the procedure of setting out the abovementioned technical conditions. Telecommunications operators and providers have pointed out that they had never taken part in the process of defining these conditions. 

The Technical Conditions Document has envisaged that telecommunications subsystems and computer systems that an Internet service provider buys for their own money, are to be installed in the premises of a relevant state body. The identity of the relevant state body  remains unclear, especially if we bear in mind that they are entitled to exert control over Internet communications without a court order. Anyhow, it can be deduced from this provision that such a state body could monitor Internet communications at the expense of Internet service providers from their own premises, which further creates additional space for arbitrary behaviour and abuse. And besides, the fact remains that considerable expenses of acquiring equipment that has been in the sole and exclusive jurisdiction of the state has now been transferred to the Internet service providers, and also that the provisions of the Technical Conditions Document have not limited the scope, duration, number of users’ addresses, and even that these provisions have legalized the state insight in the entire Internet communication and even in the providers’ databases on their subscribers.

Although the Republic of Serbia Constitution has envisaged a mandatory adoption of a Personal Data Protection Act, such a legal act is still nonexistent in our country. Thus, there are no mechanisms to prevent abuses in the personal data protection field, and thus the technical conditions – such as the RATEL’s Technical Conditions Document – create room for abuses and arbitrary monitoring through creating allegedly legal foundations for unobstructed and unlimited control of electronic communications. The Technical Conditions document does not contain any limitation with regard to the content for which the relevant state bodies aim to find in the course of communications’ monitoring, nor any list of criminal acts for which evidence can be collected in such a way, and thus a question of whether a randomly found piece of information can be used as evidence for any illegal activity. In any case, it is necessary to point out that evidence collected without respecting constitutional guarantees on privacy and secrecy of data, cannot be used as evidence in any criminal court procedure.

Related News:

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