11. 08. 2011

ANEM OPINION ON DRAFT RULEBOOK ON TECHNICAL REQUIREMENTS

Taking part in public consultations on the Draft Rulebook on technical requirements for equipment and program support for lawful interception of electronic communications and electronic communications data retention, on August 11, 2011, ANEM submitted to the Ministry of Culture, Media and Information Society its written opinion on the draft of this Rulebook.

Deeming that the Rulebook, if adopted in the proposed text, would seriously challenge the exercise of the constitutionally guaranteed rights to personal data protection, freedom of opinion and expression, media freedom and the right to information, in its opinion, ANEM suggested to the Ministry to withdraw the Draft Rulebook, namely to prepare a new text of the draft, which would be fully in line with the constitutionally guaranteed secrecy of correspondence and other means of communication, as well as other fundamental human rights that have not been sufficiently taken into account in the preparation of the Draft.

ANEM believes that the Draft Rulebook provides for too broad competence to intercept electronic communications, as well as unclear rules on who and under what circumstances has the right to access electronic communications data, retailed by operators, which represents a threat to the respect and exercise of human rights, especially rights to freedom of expression, since, among other things, they limit the right of the media and journalists to effectively protect the confidentiality of their sources.

The main ANEM objections to the Draft Rulebook include the following:

• By adopting the Rulebook in the proposed text, the rights to confidentiality of journalists' sources of information under Article 32 of the Public Information Law would be particularly affected, as it would leave the space for disclosure of data regarding the source of information in any case, not only in the cases provided for by the Law. That would jeopardize not only the right of every citizen to be truthfully, completely and timely informed on issues of public importance, but also the functioning of the media in a democratic society.
• Provisions of the Draft Rulebook that establish a national monitoring center, in charge of activation and management of secret surveillance of electronic communications, which are handed over to the Security-Information Agency (BIA), are utterly unacceptable and explicitly contrary to the provisions of the Law on Electronic Communications that regulate the procedure for enforcing lawful interception electronic communications and legal access to the withheld data.

In addition, ANEM has supported the objections of the Commissioner for Information of Public Importance and Personal Data Protection that particularly call attention to the unacceptability of arranging secret surveillance of user's location, i.e. location of mobile terminal equipment, but also to many other ambiguities and omissions in the Draft Rulebook that need to be removed prior to its adoption.

For ANEM opinion on the Draft Rulebook, please see here (available only in Serbian)