Austrian court demands control military snooping powers

By EDRi · March 11, 2004

The Austrian Constitutional Court (VfGH) has declared parts of the
military power law (Militaerbefugnisgesetz, MBG) unconstitutional, in a
decision dated 23 January 2004. The case was instigated by Social
Democratic members of the Austrian Parliament. The decision does not
repair all points that critics have raised.

The military law was adopted in the year 2000 and amended in 2002. It was
the first time in Austria that competencies and responsibilities of
military authorities were regulated comprehensively. Before that, relevant
regulations were scattered in the Austrian legislation while some parts
weren’t regulated at all.

Part of the law that was declared unconstitutional deals with data
collection by observation, by requests of information and by recording
sounds and images. These snooping activities are permissible for
intelligence purposes, if the data cannot be collected in another way.

The VfGH concluded that these powers are contradictory to the European
convention on human rights and therefore unconstitutional, because this
paragraph includes an invidious regulation that reminds of the famous
Catch-22. The legal protection commissioner (who is necessary according to
the Austrian data protection act) can only be informed about current
investigations if he/she asks for information about them beforehand. But
how should the commissioner ask for info about procedures that he/she
can’t know about.

In a recent magazine article Karlheinz Probst, MBG legal protection
commissioner since 2001, says that he has a special agreement with the
minister of defence which grants that he is informed about planned
investigations automatically. But this ‘agreement’ can certainly not
replace an adequate legal provision.

Austria has three intelligence services, with different responsibilities.
Two of them, the so-called Heeres-Nachrichtenamt (HNaA) and the
Heeres-Abwehramt (HAA), as military services associated with the federal
ministry of defence are affected by the MBG; the ‘Staatspolizei’ (national
police) belongs to the federal ministry of the interior.

The Austrian Social-Democratic party (69 of 183 seats in Parliament)
raised objections to the MBG as they feared that intelligence services
might observe the Austrians without any control. The military power law
was also criticised by other political parties, by NGO’s like Vibe!at and
professional associations like the Austrian Judges Association.

EDRI-member Vibe!at remains critical of the law, especially for allowing
military organs wide powers to demand personal data (name, address, user
numbers) from telecommunication providers. The only condition is that they
consider it a ‘substantial condition’ for the fulfilment of their tasks.
Thus more comprehensive access rights are granted to the military than to
the police, who can access such data only in case of ‘imminent danger’.
The costs for these queries are shifted to the providers.

Verdict Austrian constitutional court (23.01.2004)

Objections Vibe!at against the law (18.06.2002)

(Contribution by Monika Bargmann, librarian, Vibe!At)