The Commissioner for Information of Public Importance and Personal Data Protection has forwarded the Ministry of Foreign and Domestic Trade and Telecommunications an opinion on the ''Draft Rulebook on Technical Requirements for Equipment and Program Support for Lawful Interception of Electronic Communications and Retention of Data on Electronic Communications'' highlighting wherein the need to correct the text of a significant number of provisions of the Draft. In this regard, the Commissioner, Rodoljub Sabic, has stated the following:
''So far I have repeatedly given proposals on and made objections to several different versions of the Draft Rulebook. The latest version is an indication that I have indeed contributed to the improvement of its text up to a certain, but not to the required extent.
The most relevant objection is surely pertinent to the fact that the Draft Rulebook yet again contains references to a certain ''act which shall constitute legal grounds for interception of electronic communications, and for access to, i.e. forwarding the retained data''. In relation to this, I will for the umpteenth time stress that, pursuant to the Constitution of the Republic of Serbia (Article 41, paragraph 2), a court decision is the only act which may constitute legal grounds for deviation from the constitutional right to the secrecy of means of communication. Let me remind you of the Constitutional Court's decisions regarding the constitutionality of provisions of the Law on Military Security Agency and Military Intelligence Agency, including the former Law on Telecommunications, wherein the Constitutional Court has clearly confirmed that only a court decision may constitute legal grounds for deviation from the constitutional right to secrecy of letters and other means of communication, and that other grounds are inconsistent with the Constitution.
Therefore there is no good reason to use the fluid term ''act'' instead of the clear and unambiguous term ''court decision''. This term in legislation, and in other fields as well, may have several meanings and its presence in the Rulebook causes suspicions that, consciously or not, in connection with the interception of communications or access to retained data, room is being left for deviation from the constitutional guarantees.
Some other provisions of the Draft Rulebook merit critical consideration, as well.
For example, those which stipulate that supervision should also cover ''other identity related data'', in addition to the data listed in the law. What are these ''other identity related data''? Personal data processing, pursuant to Article 42 of the Constitution, shall be regulated under the law. Therefore the answer to this question should, firstly, be clear, and secondly, it should be provided for by the law and not a secondary piece of legislation. Similar is also true of the provisions of the rulebook governing the obligation of operators to use the appropriate technical interface to provide the relevant authorities information on the location, regardless whether the user is communicating or not, because something like that, if necessary, should be provided for by the law.
The operators' obligation to provide competent authorities access to international transit connections merits attention, as well. In my opinion this is an issue which should be regulated under international treaties and the law and one should not underestimate the possibility that, if this issue is regulated under secondary piece of legislation, it could lead to unpleasant consequences to international relations."
