Source: "Blic"
Secret service has been left too wide space for possible manipulation.
According to the Law on Security Intelligence Agency, collection of data on performed telephone communication, without insight into its contents shall not be deemed as infringing privacy of citizens, and therefore it necessitates only the Agency Manager’s decision.
T. N. Đaković
Security-Intelligence Agency can collect data about who is talking to whom over the phone, when, how often and from which location, without any court decision or of any control body whatsoever. The same applies to monitoring e-mail communication. For something like that it is necessary only that the Security-Intelligence Agency Manager, in this case Saša Vukadinović, issues a decision, and an order to his agents.
Until it does not intrude the contents of telephone conversations, the Security-Intelligence Agency is legally covered for those operations. According to the existing Law on Security-Intelligence Agency, collection of data on performed telephone communication and location, without insight, is not deemed infringement of citizens’ privacy.
Saša Janković, the Ombudsman, in his report after the first control of Security-Intelligence Agency quotes that during compilation of the new Security-Intelligence Agency Act it is necessary to discuss in detail comparative legal experiences and to determine whether the current legal solution is sustainable.
- The Agency has already been issued this recommendation, because I think that the current laws, regarding this issue, leave too wide space for the service. Security-Intelligence Agency has already started with work on new draft law, and I would urge that implementation of those measures should be accompanied by court decision, or to be controlled by another body. I have, in my time, when the law on foundations for regulating the security services has been compiled, urged that at least the Council for National Security should be informed about implementation of those measures. We shall see what of the solutions known also in other countries shall be used - says Janković.
He adds that regarding this issue he expects expert debate and notes that the same authorizations as in Security-Intelligence Agency also have Managers of Military Security Agency, and of police.
The Ombudsman’s report contains a multitude of other recommendations for enhancing work and decreasing space for violating human rights in the work of secret service and of its members, for whom Janković says that they „can not be ever and anywhere completely excluded”.
Rodoljub Šabić, Commissioner for Information of Public Importance says that there are not enough of data in order to reliably determine whether the procedure for eavesdropping applied by Security-Intelligence Agency is full of shortcomings enabling abuse.
- In any case, I think that abuses can not be ruled out, and that we have lots of things to do on the legal, technical and organizational plan, in order to bring the possibility of their occurrence to the smallest possible measure - says Šabić for „Blic”.
When asked if the very fact that Security-Intelligence Agency can without approval monitor who is communicating with whom by telephone and by e-mail, without asking for court approval, represents a serious source of information that should be limited, Šabić replies:
- That is an inherited solution we still have today.
Šabić reminds that this authorization, which according to the valid laws hold not only Security-Intelligence Agency, but also Military Security Agency and Ministry of Internal Affairs, is based on opinion that the constitutional guarantee of secrecy of means of communication covers only contents of telephone talks and electronic messages, and not so-called traffic related data. The Commissioner notes that, accordingly, it is considered that court approval is needed only for insight into contents of communication, and not for the data about who is communicating with whom, when and from which location.
- I personally consider that the „data on traffic” are a part of the communication covered by the constitutional guarantee. I base my opinion also on Decisions of the European Court for Human Rights, for instance, in case of Malone against Great Britain, where the court has explicitly taken such position. Of course, regardless of everything, it is more important what the National Assembly thinks about that or shall think and finally, the Constitutional Court - points out Šabić.
The Assembly could deal in at least one issue speaking about Security-Intelligence Agency’s authorizations. The Agency is, according to the current law, left a time period of four days to implement the measures without court decision, but with written approval by an authorized judge. The Agency can, after implementation of measure of those four days fail to submit the request to the court. Šabić notes that in this case we deal with legally envisaged extraordinary situation that should be reserved for extremely urgent cases, and he does not think that it represents a special problem.
- Namely, although for implementation of that measure it is not necessary to have formal court decision, but only written consent of the court chairman, we still have some sort of judicial control. Having in mind that fact, that solution does not open up an opportunity for big abuses. Still, in time of e-technologies, I think that it should be required from the very start that there is a court decision. Because, objectively speaking, the condition is not too difficult that right from the start court decision should exist for implementation of measures envisaging departure from the constitutionally determined guarantees for human rights – he added.
On the other hand, the Ombudsman evaluated that it is necessary to improve electronic system for control of communications’ contents. And that should be done in such a way, not only to mark every access and use of the system, but to also prevent abuse that can happen, for instance by entering non-existing number of command for implementation of a measure by ill-intentioned operator – by introducing double key.
Šabić says that hypothetically, abuses can not ever be excluded. Therefore, as he says, one should undertake everything in order to protect the citizens’ privacy as efficiently as possible, and to bring the possibility of abuses to the minimum measure possible.
Boxed bold text: Issue of privacy has also been opened before
Issue of privacy protection, speaking about telephone and Internet communication has been opened already two years ago. Now adoption of the law on e-communications has been announced, which the Ombudsman and the Commissioner see as a real chance to discuss and to regulate, according to the democratic world criteria, open issues pertaining to communications’ interception.
Article 9 of the Law on Security Intelligence Agency
Collection of data on established and tried telephone talks and the user’s location has been regulated by the Law on Security Intelligence Agency, Article 9. It is written there that „Agency Manager shall be enabled to order by his decision, implementation of operative-technical means and methods in order to collect information about telephone traffic of a certain person, without violating the content of the communication, but for identifying telephone numbers and location of called and established communications”.
