23 December 2009

Despite the broad public and media campaign against certain proposed amendments to the Electronic Communications Act, they passed first reading in the Bulgarian parliament on December 22, 2009.

 

In October 2009, a working group within the Ministry of Interior (MoI) drafted a bill amending the Electronic Communications Act. The Minister of Interior initiated a public consultation on the proposed amendments which however intended to introduce direct access of the MoI to citizens’ telecommunication data.

 

AIP has led the campaign against direct access to telecommunication data.

AIP took part in the two rounds of consultation organized by the MoI and on November 5, 2009  submitted an Opinion Statement to the Minister of Interior with regard to the proposed amendments. On December 10, 2009 AIP submitted an Opinion Statement to two parliamentary Committees - Internal Security and Public Order and the Transports, Information Technologies and Communications. AIP experts also took part in the discussions held by these parliamentary committees and the Legal Affairs Committee.

 

The campaign was broadly covered by the media. As a result the Deputy Minister of Interior stepped back and declared that there is willingness of the government to reach a compromise with the civil society but it will not give up on the direct access to communication data.

Due to AIP proposals, the text of the draft law was significantly improved. The following proposals have been accepted by the government:

-         only the head of the competent authorities shall submit a request to the telecommunication companies for the transmission of the data;
-         besides other requirements, these requests shall also contain the grounds and purposes for the transmission;
-         the Parliament will have oversight functions over the MoI.

 

Notwithstanding these improvements, some major concerns remain.


First of all the amendments provide for the creation of an interface which would give the MoI direct access to all information on who communicates on phone, email and Internet to whom, where, how and when. This causes a disproportionate interference with privacy with no guarantees for judicial oversight.

 

Our second objection is against lowering the bar for crimes for which electronic communication data could be used from five to two years. Such provision violates the Bulgarian Constitution according to which the right of respect for the correspondence can only be restricted for the prevention of serious crimes, which are punished with at least five years of imprisonment.

 

Thirdly, under the current proposal, citizens have no right to request information whether or not their communication data has been subject to investigation. In the absence of such notification the persons who have been subject to this kind of surveillance are unable to seek redress for unlawful access to their data.

 

Lastly, the current proposal does not provide for a period after which communication data that has been accessed by the competent authorities has to be destroyed. Storage of the data for an indefinite period is in itself a disproportionate measure.

 

AIP has been leading the campaign against the direct access to telecommunication data for a second successive year.


The EC directive 2006/24 requires the providers of publicly available electronic communication services and/or networks to retain traffic and location data of users. In Bulgaria the directive was partially transposed by Regulation # 40 on the categories of data and the procedure under which they would be retained and disclosed by companies providing publicly available electronic communication networks and/or services for the needs of national security and crime investigation.


The adoption of the regulation, and especially the provision which would have introduced direct access to retained communication data triggered a massive wave of criticism among the civil society as it implies serious intrusion in private life and correspondence. The Regulation # 40 binds the mobile operators and internet providers to retain data on electronic messages and phone calls for a period of 12 months. According to art. 5 of the Regulation the data would be retained by the providers and a directorate within the Ministry of Interior (MoI) would have a direct access via a computer terminal.


Access to Information Programme filed a complaint before the Supreme Administrative court against the Regulation # 40. With a decision as of December 11, 2008 a five-member panel of the Court repealed art. 5 of the Regulation.
The court ruled that the Regulation did not set any limitations with regard to the data access through a computer terminal and does not provide for any guarantees for the protection of the right to private life as guaranteed by the Constitution and the European Convention on Human Rights (ECHR).

 

In March 2009, the government attempted again to introduce the same text giving direct access to the MoI to all information held by the providers, this time by amending the Electronic Communications Act but the text did not pass before the Parliament. 

All information about the litigation is accessible on AIP web site: http://www.aip-bg.org/documents/data_retention_campaign_eng.htm.