In the European Union (EU) the limitation of mass surveillance measures is currently discussed in the context of the European Court of Justice (CJEU) and four EU member states’ constitutional court decisions relating to the laws on retaining traffic data. At the same time, in the Republic of Moldova, a new law on broadening the obligations to retain traffic data, increase digital surveillance and impose internet blocking is being proposed – without a comprehensive analysis of the necessity and proportionality of this excessive interference with the fundamental rights, and claiming these obligations are needed to comply with the international conventions.
The draft Law no. 161 on Amendments and Supplements to Certain Legislative Acts, also known as the “Big Brother” Law, raises several issues relating to the way these provisions could be applied. It could affect fundamental rights, and, in particular, the right to privacy, without being justified as necessary in a democratic society, in line with the European Convention on Human Rights.
Some of the proposed amendments raise legitimate questions about the need for each particular measure. For instance, the implementation of the proposal to block access to “all IP addresses that host web pages (…) containing information that urge to hatred or ethnic, racial or religious discrimination, to hostility or violence” would lead directly to blocking Facebook, YouTube or Twitter in the country, although this most probably was not what the legislator wanted.
Bogdan Manolea, the Executive Director of the Romanian EDRi member, Association for Technology and Internet (ApTI) in collaboration with the Legal Resources Centre from Moldova (LRCM) prepared recommendations concerning the “Big Brother” Law. The recommendations include:
- rejection of the proposed articles that would lead to mass surveillance measures (such as those related to data retention);
- detailed examination of legislation that extends the limitation of fundamental rights, including a study of the impact on human rights based on the case law of the European Court of Human Rights and independent expert analysis;
- waiving the obligations to “stop“ access to web pages. Blocking of web pages by Internet Service Providers (ISPs) represents an interference with the normal internet traffic between users and websites, which amounts to a violation of freedom of expression and the right to privacy by means of creating a layer of censorship. It is important to understand the difference between:
- stopping access/blocking – when the content remains on the internet, visible to most users, but hidden for the users from the Republic of Moldova who are subject to blocking; and
- deletion of content from the internet – when the illegal content cannot be accessed anymore.
You can read the full Opinion on the Draft Law no. 161 on Amendments and Supplements to Certain Legislative Acts (“Big Brother” Law) here http://crjm.org/wp-content/uploads/2016/12/2016-11-Op-Big-Brother-CRJM-Manolea_Eng-fin.pdf (in English) or here http://crjm.org/wp-content/uploads/2016/12/2016-11-Op-Big-Brother-CRJM-Manolea_Ro-fin.pdf (in Romanian).
“Big Brother” Law proposed for public debate (10.10.2016)
Civil Society Organisations Calls for an international expertise of the Draft Law which Extends and Intensifies the Law Enforcement Bodies’ Control over the Digital Space (08.04.2016)
(Contribution by Bogdan Manolea, EDRi member ApTI, Romania)