HFHR addresses proposed changes to powers of law enforcement agencies

“The draft law that introduces a change to the procedure for secret collection of personal information still fails to implement a judgment of the Constitutional Tribunal”, reads the HFHR’s opinion on proposed amendment to the Police Act.

The purpose of this deputy-sponsored draft law, recently presented to the Sejm, is to implement a judgement of the Constitutional Tribunal passed in July 2014. The draft is to a large extent based on the solutions incorporated into the Senate’s proposal from July 2015, which ultimately remained unadopted. At that time, the HFHR already noted that the draft did not create a system of independent and prior control over the collection of telecommunication data. For that reason, the draft failed to adhere to the EU law guidelines governing the protection of personal data.

Unfortunately, also the deputy-sponsored proposal from December 2015 failed to create a system of independent control of law enforcement services’ actions. Furthermore, the services’ powers to obtain data have been extended on “online data”, which will be accessible through ITC networks without the obligation to submit a relevant application before each instance of data collection.

“The scope of online data is wide enough to create the foreseeable risk that such data may include, for instance, domains of visited websites or even content of exchanged communication”, assesses Barbara Grabowska-Moroz, a lawyer working with the HFHR.

The draft submitted by the Sejm deputies, similarly to the July draft, fails to guarantee protection of information covered by professional confidentiality obligations such as attorney-client privilege or reporter’s privilege. Pursuant to the draft law, such information is disclosable to a prosecutor, who has no power to have it destroyed, and later to the court.

The draft also extends the scope of the so-called “covert investigative methods” by introducing powers to collect and record “data stored on computer-readable data carriers, telecommunication end devices, and in IT and ICT systems”. In the opinion of the HFHR these measures worsen the situation of an individual. Currently, covert surveillance methods must be approved by a decision of a prosecutor and a person so targeted may file a complaint against such a decision. Under the amended regulations, the person whose computer has been searched in this way will most likely never know about it. This is a consequence of the fact that the draft still fails to implement a signal decision of the Constitutional Tribunal, which ruled that a person subjected to covert investigative methods must be informed about the fact that they had been targeted and that the surveillance had ended.