[LINK] Czech Constitutional Court Rejects Data Retention Law

[Roger Clarke]

Czech Constitutional Court Rejects Data Retention Law
31 March, 2011 » Telecommunication data retention
http://www.edri.org/czech-decision-data-retention

The Czech Constitutional Court decided today, 31 March 2011, that the 
national implementation of the data retention directive is 
unconstitutional, in a complaint drafted by EDRi-member Iuridicum 
Remedium (IuRe).

See below the full press release from IuRe

Constitutional Court: Spying on Communication Declared Unconstitutional
An ongoing campaign by the civic rights organisation Iuridicum 
Remedium (IuRe) aimed against public spying on everyday communication 
resulted in a considerable success. In its today´s session, the 
Constitutional Court announced its decision to repeal legislation 
according to which records of e-mails, phone calls, SMS as well as 
websites accesses of every citizen should be retained for a time 
period of six months as a matter of precaution.

"The Constitutional Court accepted all points of our complaint and we 
do consider this a great success. Now the time has come to open 
discussion on new ways of implementing the Data Retention Directive 
into our legal system in order to meet the highest standards with 
respect to privacy protection. Of course, only assuming that the 
Directive will not be repealed as a whole," explains IuRe legal 
expert Jan Vobo?il.

Constitutional Court agreed with IuRe privacy protection activists 
and a group of 51 MPs headed by Marek Benda who in March 2010 
submitted a proposal elaborated by IuRe calling for repeal of 
relevant sections of the Electronic Communications Act and 
implementing legislation imposing obligation on mobile operators and 
internet providers to retain data on communication for police use. "I 
do welcome this decision of the Constitutional Court to accept the 
proposal of Civic Democratic Party (ODS) MPs to repeal such 
obligation imposed on operators. This is another confirmation proving 
the merits of our ongoing efforts to protect personal integrity. Not 
even the European anti-terrorism campaign can lead to unrivalled 
privacy infringement," urged MP Marek Benda, MP. Apart from Civic 
Democrats (ODS), the complaint filed with the Constitutional Court 
also enjoyed support of Green Party (Strana zelen?ch) MPs.

The Court declared the respective section of the Electronic 
Communications Act and its implementing legislation unconstitutional 
and repealed it as of today. According to the Court statement, 
ambiguous definition of data retention rules results in a situation 
where such "measures as to request and use retained data are being 
overused by authorities engaged in criminal proceedings for purposes 
related to investigation of common, i.e. less serious crimes".

"The Constitutional Court also regards e.g. certain provisions of the 
Criminal Act concerning the use of such data by authorities engaged 
in criminal proceeding as highly questionable and it called on MPs to 
consider its modification," adds IuRe expert Petr Ku?era.

According to the Court, it will be necessary to consider each 
individual case in which data have already been requested in order to 
be used in criminal proceedings one by one - with respect to the 
principle of proportionality regarding privacy rights infringement. 
"This decision also implies that electronic communication providers 
are no longer obliged by any law to retain such data for the use of 
entitled authorities - as was previously the case according to the 
repealed provisions; the respective databases should be deleted," 
explains IuRe legal expert Jan Vobo?il. "This Constitutional Court 
decision is of great importance not only with respect to the Czech 
Republic but to the European Union as a whole, since there is 
currently an evaluation process under way assessing the impact and 
constitutionality of the Data Retention Directive," comments Vobo?il.

More info on IuRe at
http://www.iure.org/


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Roger Clarke                                 http://www.rogerclarke.com/
			            
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Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University