HFHR’s opinion on changes of telecommunication data retention law

The HFHR has presented the second opinion on the draft legislative guidelines for the law on obtaining and using telecommunication data drafted by the Ministry of Interior. The reviewed legislative draft aims at restricting the interference of public bodies with privacy of individual persons and strengthening the control mechanisms over obtaining and using telecommunications data.

It stipulates the establishment of plenipotentiaries for personal and telecommunication data protection within individual agencies. “However, the bill doesn’t say whether plenipotentiaries for personal and telecommunication data protection will also be concerned with reviewing cases submitted by individual natural and legal persons”, says Barbara Grabowska, a HFHR lawyer.

Further, the Ministry of Interior recommends in its draft proposal to reduce the practice of obtaining and using telecommunication data. Yet, as compared to the previous version of the bill presented in May 2012, the current one narrows the new rules for restricting access to telecommunication data. “Therefore we still call for creating an exhaustive list of offences that can be investigated by obtaining telecommunication data”, explains Ms Grabowska. The Ministry of Interior plans to draw up such a list, but for petty offences only.

The draft legislation provides a more thorough treatment of the issue of destroying redundant telecommunication data. Nevertheless, it still contains no mention of granting such authority to the plenipotentiary for telecommunication data.

The bill imposes a reporting obligation on various agencies. In the new bill, unlike in the case of its predecessor of 22 May 2012, the Ministry of Interior agreed with a number of recommendations made by the HFHR in its opinion of July 2012 and extended a list of telecommunication data covered by the reporting obligation.

Unfortunately, the proposers are still reluctant to recommend the creation of any external control mechanism over obtaining and using telecommunication data. “The project is still silent on imposing any court review of telecommunication data retention, though such a review is a standard practice in a majority of EU states”, says Ms Grabowska.

In addition, the draft law contains no proposals to appoint a single external body, for instance attached to the structures of the IGPPD, that would be responsible for overseeing simultaneously the activities of all agencies, though its appointment was announced in the “Report on telecommunication data retention”. The report recommended the creation of an independent body appointed by the Parliament to oversee the investigative work of secret services and specialised law enforcement agencies.

On top of that, the Ministry of Interior backed out of its proposal to enhance the control of the prosecution service over obtaining such data. The current draft legislative guidelines propose no changes to that effect. In the opinion of the HFHR, this is a step back on the way to improved control over obtaining telecommunication data.