Jusletter IT

Totalitarian (earlier) and authoritarian (later) socialist state did not respect individual liberties to extent recognized in democratic countries. There was no freedom of speech and association. All exchange of information and opinion was controlled. This control does not spare communication among individuals. Secrecy of mail was guaranteed in constitutions. However, significant exceptions were allowed for broadly defined security reasons. In addition to it, misuse was not curtailed.

Telegraph, telex and telephone originated before the war in democratic Czechoslovakia. Especially Czech part was always technologically advanced. Coverage with these services, however, extended slowly in the period of socialism. All services were provided exclusively by state post, telegraph and telephone enterprise under close government control. There were long waiting lists for their installation. Prices for phone calls were high and earnings were used for cross-subsidizing of other activities.

Wiretapping was thus easy to organize under such conditions not only in Czechoslovakia,¹ but also in other countries of Eastern bloc.² Its orientation, extent, organization and techniques varied. In addition to it, dissidents, nonconformists and other «useless» and «troublesome» people could be also switched-off or denied their individual phones.

Czechoslovakia democratized after Velvet revolution in 1989. This process enhanced emancipation tendencies of Slovakia and resulted into peaceful dissolution of Czechoslovakia in 1992. Successor countries remain close and similar. Most tendencies in Czech Republic can be observed also in Slovakia.³

Newly established countries were quickly liberalized. Individual rights and liberties were introduced quickly with new legislation and finally guaranteed with Charter of Fundamental Rights and Liberties. This second constitutional act is since then enforced by a strong constitutional court empowered to interfere in legislation in both individual cases and in framework of politics.

Attention to privacy quickly increased to extent unknown in the past. Collectivism and slowed modernization of society postponed individualization necessary for underlining of privacy in many spheres such as consumption, housing or healthcare. This quick change of attitudes has consequence for evaluation of surveillance of electronic communication. Elder generation had limited understanding for concerns, objections and demands raised by younger generations related to privacy, including surveillance of communication.

Market economy was introduced in Czech Republic and Slovakia. Commercialization and privatization quickly included providers of services of electronic communication.⁴ Interests of providers which differ from interests of government and consumers are usually identified and pursued by them, but often poorly analyzed and understood by others.

Czech Republic acceded to International Organizations of democratic and developed countries as the Council of Europe, the Organization for Economic Cooperation and Development and the North Atlantic Treaty Organization. Membership in the first organization results in requirements for attention to European standards of fundamental rights, membership in the second organization eases exchange of experience related to problems related to developed countries and membership in the third organization led to increased involvement of worldwide engagement for security consisting now foremost in combatting of terrorism. Standards and recommendations of all these organizations shall be considered in regulation of electronic communication.

This integration was finalized in 2004 with accession of Czech Republic and Slovakia to the European Union. The most important external influence on electronic communication results from the membership in this supranational entity established for economic integration of growing number of member states.

However, Czech Republic is a post-socialist country with inefficient administration, slow and complicated adjudication.⁵ Corruption is suspected in many activities. Relatively stable political system deteriorated during the last years. Populist movements reshape political landscape.

Czech law is compromised with quickly changing of legislation and extremely divergent interpretation of statutes caused by different thinking of lawyers of various generations. Reflection of law and legal practice is often limited and of poor quality. Unpredictability of legal framework is result of all these features in many cases of daily economic, social and political life.

Internationalization and Europeanization of Czech law was necessary in above mentioned situation. Nevertheless, influx of rules of international and supranational laws contributed significantly to mentioned complexity of Czech law and complicated further its application.

Telecommunication technologies modernized quickly since 1990 in Czech Republic. Stationary telephones were gradually flanked and later largely replaced with mobile phones. Similarly, personal computers were bought by thousands by companies and institutions. Internet entered Czechoslovakia in 1992. Lower purchasing power and comparatively high prices resulted not only from necessary immense investment, but also from oligopoly of providers delayed introduction of modern technologies of electronic communication.

Nevertheless, Czechs enjoy since the beginning of the 21^st century technologies of electronic communication to extent comparable with the most developed countries. All technologies have been mastered by Czech experts and adopted creatively by numerous fans of modern technologies.

Social, economic and legal problems related to the most developed countries are thus also in Czech Republic. Methods of mass surveillance of electronic communication caused considerable attention. Selective phone and Internet surveillance is expected as method of criminal prosecution. Temporary retention of metadata related to telephone and Internet communication – identification of connections and localization of mobile phones and of similar data of Internet communication – has been required by Czech legislation⁶ already before adoption of Data Retention Directive.⁷

Czech law thus complied with requirements of the European Union without intentional implementation. National legislator was obliged to retain this compliance since deadline for its implementation.

This legislation was criticized heavily as interfering too much into privacy of clients of communication services by human rights activists⁸ and by several journalists. Fortunately, this criticism was accompanied with extraordinarily intensive academic attention to legal aspects of the problems by legal experts familiar with modern technologies and modern interpretation of complex legal rules⁹ and human right activists.¹⁰ Nevertheless, nor support for this legislation neither its criticism was connected with any political party. The issue has not become fuel for confrontation between opposition and governing coalition. Such new aspects of privacy form minor topic for most politicians.

The Constitutional Court largely accepted objections of group of deputies and senators aware for the problem representing both governing parties and opposition. The court abrogated provisions of the Act on Electronic Communication requiring retention of metadata related to phone and internet communication for investigation of criminality.¹¹ It identified exaggerated intervention into privacy of customers of providers of services of electronic communication in such data retention. It was underlined by the Constitutional Court that collected metadata are of limited importance for investigation and prosecution of serious crimes and required routinely by the police.

The Constitutional Court was asked to request the Court of Justice to check the compliance of the Directive with fundamental rights of the European Union and of the Council of Europe in preliminary ruling. The court acknowledged that the Directive was ground for adoption of national legislation found unconstitutional.

According to the court, however, requirements of the Directive could be met with respect to privacy of clients of communication services. It could thus easily continue its policy of refraining from direct exchange of opinions with the supreme court of the European Union.¹²

Interventions of the Constitutional Court did not end with this decision. At request of one district court in Prague acting as criminal court of the first instance, the Constitutional Court abrogated¹³ a short provision of the Code of Criminal Procedure enabling easy use of retained metadata of electronic communication in criminal proceedings by the Police of the Czech Republic (national police force empowered to investigate crimes), state attorneys (offices of public prosecution) and courts deciding on criminal matters.¹⁴

Abolition of duty to retain telecommunication metadata and easy access to it by legal enforcement authorities was interpreted as prohibition of metadata retention in subsequent period due to existing rules of protection of personal data which are also established as implementation of law of the European Union and widely expected internationally.

Not only necessity to comply with the Data Retention Directive, but also pressure of the police and intelligence service resulted in quick reintroduction of metadata retention and its use in criminal proceedings. The Cabinet thus quickly prepared new legislation addressing objections of both judgments of the Constitutional Court. Detailed rules have been adopted for data retention¹⁵ and its use during criminal investigation and prosecution.¹⁶

Nevertheless, criticism of the legislation does not disappear after adoption of reparatory legislation by the Parliament. Critics underline that the Police tends to overuse metadata related to phone calls in its investigation. Success rates of investigation of serious criminality do not support claim that metadata retention is necessary for combatting serious crimes. It was underlined that duties of providers of electronic communication services were specified improperly for numerous providers of Wi-Fi connection in hotels, restaurants, office buildings and in schools. Existing model of compensation of providers for metadata retention is also discussed whether feasible and balanced.

Fortunately, Czech Republic has not encountered any terrorist attack during the last two decades. It is thus hard to justify in domestic political debate that metadata retention as necessary for combat of terrorism. Surely, it can be underlined that contemporary terrorist groups operate internationally and Czech Republic is described from time to time as resting place for internationally active terrorists and their collaborators.

Data retention is thus justified as useful complementary tool for investigation and prosecution of serious violent and economic criminality including corruption of politicians, if any justification besides mere implementation of law of the European Union is expected.

There are numerous leaks from investigation files of the Police and offices of state attorneys including information obtained by targeted wiretapping of mobile phones and surveillance of Internet communication.

From time to time, metadata of phone calls are included in these disclosures. Some leaks are published by investigative journalists covering closely watched corruption affairs of politicians and important cases of both economic and violent criminality.

Disclosures during police investigation and preparation for judicial proceedings are illegal. These disclosures are often criticized, but rarely result in disciplinary measures because it is difficult to investigate those guilty of leaks. Introduction of harsher punishments for journalists using these leaks¹⁷ was criticized as «muzzle law».¹⁸

No leak revealed until now any systematic analysis of retained metadata by Czech police and by the Security Information Service (civil counter-intelligence) and Military Intelligence services for purpose of tracking of individuals and groups posing security threat to the country. No systematic and large-scale activities comparable to these of the National Security Agency of the United States of America and authorities of its close allies debated hotly in the last year and similar mass surveillance realized in China, Russia and other global powers seem to be carried by any Czech authority.

This inactivity reflects mentioned weaknesses of Czech government, visible among others in widespread troublesome management of informational technologies in public administration. Many projects of electronic support of administration have failed entirely or caused disappointment for poorly interconnected with existing administrative practices. High expenditures for some these projects caused underdevelopment of e-government and mistrust towards it. Similarly, the Ministry of Defense and the Army are criticized for uncoordinated and expensive purchases of weapons and other equipment.

Additionally, considerable spending necessary for effective mass surveillance would lack political support in nation with widespread pacifism resulting in swift abolition of drafts and low military expenditures.¹⁹

According to newspapers, police officers reluctantly admit and later refused to operate IMSI-catcher (known under female name Agáta) for rapid surveillance of cell phone communication in cases of utmost urgency.²⁰

Similarly, there is lack of interest of United States of America and United Kingdom intelligence services. Czech Republic is labelled as irrelevant.²¹ As reported by the Security Information Service, Russian and Chinese intelligence services operate on Czech territory to considerable extent.²² Nevertheless, there is no suspicion that domestic telecommunication is monitored by these and other alien intelligence services.

Another phenomenon is, however, private surveillance of mobile phones with various measures. Special cell phones with enhanced encryption are marketed and their use played role in several scandals. Police officers expressed suspicion on private operation of IMSI-catchers.²³ Theoretically, these activities are illegal and can be suppressed.

Above mentioned request for preliminary ruling to the Court of Justice resulted in unprecedented event. Data Retention Directive was declared void. The Court of Justice found required systematic retention of telecommunication metadata as a restriction of privacy failing to comply with principle of proportionality.²⁴

The Directive has already been implemented by most Member States. Early commentaries envisage two interpretations based on different understanding of the role of the Charter of Fundamental Rights of the European Union.

According to narrow interpretation, the Member States can continue to apply their legislation requiring retention of telecommunication metadata, albeit many have adopted while implementing law of the European Union. Abolition of the Directive opens door to real political consideration of retention of telecommunication metadata by national parliaments and eventual judicial control whether in compliance with fundamental rights set by constitutions.

Broad interpretation would result in removal of metadata retention. Member States are expected to implement supranational law of the European Union. They shall transpose directives correctly and timely. Similarly, they should remove imposed standards if found non-compliant with single standard of fundamental rights even without any impulse. Member States would surely push for possibility to continue retention. Police forces worldwide like this instrument. Expenditures have significantly decreased and become negligent now. Technical capacity for retention of content of phone calls and e-mails emerges. Otherwise, continuing data retention would gradually erode with such broad interpretation. Providers could be hardly sanctioned for cessation of metadata retention. Suspected criminals will put in question their investigation and prosecution based on retained metadata of telecommunication.

Specialized journalists, legal scholars and experts on security commented the judgment in newspapers, television and in blogosphere. Scenarios summarized above were mentioned. Czech (and Slovak) activists cautiously claim that judgment of the Court of Justice must result in abolition of metadata retention.²⁵

According to unofficial information, representatives of the Ministry of Industry and Trade, Czech Telecommunication Office and the Ministry of Interior which is responsible for the Police agreed that there is nothing to change.²⁶

No judicial proceedings arguing with fresh case-law have been launched. It is thus hard to estimate whether the Constitutional Court would be willing to reconsider its findings.²⁷

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Filip Křepelka, Masarykova univerzita, Brno