New draft law for data retention in Romania
This article is also available in:
Deutsch: [Neuer Entwurf zur Vorratsdatenspeicherung in Rumänien | http://www.unwatched.org/EDRigram_9.13_Neuer_Entwurf_zur_Vorratsdatenspeicherung_in_Rumaenien?pk_campaign=edri&pk_kwd=20110708]
The Romanian Ministry of Information Society and Communication (MCSI)
submitted, for public comments, on 23 June 2011, a new draft law for the
implemention of the EU data retention directive, after the Romanian
Constitutional Court decided on 7 October 2009 that the Romanian law was
unconstitutional.
The explanation for the new text is merely a copy&paste from former
documents. The new text just adds that this law was necessary because the
European Commission has initiated a new action of infringement (letter
C(2011) 4111 dated 16 June 2011) in the case 2011/2089 for not implementing
the data retention directive.
Although the explanation of the Ministry is that the new text is compliant
with the decision of the Constitutional Court and the ECHR jurisprudence,
the text of the draft law is nothing else than a copycat of the former law
298/2008, that has been already declared unconstitutional. The only addition
that is supposed to solve this problem is the new article 13 that says the
data retention activity must fulfil the principles of same quality and
security than other data used by electronic communication providers, and of
“appropriate technical and organisational measures” for not losing or
abusing the data (without making any reference to what that might mean in
practice).
Instead, the present text is in fact vaguer than the initial law that
was declared unconstitutional. The procedure to access the data has been
deleted, just saying that the data might be accessed under the conditions of
the “Penal procedure code and other special laws”. Only that the current
Penal procedure code does not foresee any procedure in this respect and, at
least this moment, there are no special laws on the subject.
Also the right to access the data can now be exerted by any “judicial
authorities” and “authorities with attributions for national security and
safety”, which was a vagueness of the text already criticized by the
Constitutional Court.
Ionut Negrescu, the deputy general secretary in the MCSI claims that the
Romanian authorities have been working for 1 year and a half in a working
group led by the Ministry of Justice together with the MCSI, Ministry of
Internal Affairs and Department of European Affairs. However, MCSI refused
to admit even the existence of such a group, despite several questions
publicly addressed by the civil society since 2010. Also, there was no
public statement on this matter during all this period.
At the same time, Negrescu admits that MCSI is in a deadlock: “The
Constitutional Court says you may not retain for 6 months the traffic data
of a person that is not under penal investigation and we were retaining all
citizens’ data. On the other hand, this is against the EU directive, which
asks to retain this data for a minimum of 6 months. Here, we are in a
deadlock”.
Basically, between respecting human rights and the Constitutional Court
decision and following the opinions of the European Commission, the Romanian
Government choose the latter.
Five civil society NGOs, including EDRi-member ApTI, have asked for a public
debate on the subject organized by MCSI, claiming that the current text is
still unconstitutional. So far, no official reaction from MCSI has been
received.
Draft law on data retention (only in Romanian, 23.06.2011)
http://www.mcsi.ro/Transparenta-decizionala/24/ProiectRetinereaDatelor
Reasoing for the draft law on data retention (only in Romanian, 23.06.2011)
http://www.mcsi.ro/Transparenta-decizionala/24/ExpunereMotive
5 NGOs warn that the new Big Brother draft law is still unconstitutional
(only in Romanian, 28.06.2011)
http://economie.hotnews.ro/stiri-telecom-9185463-cinci-ong-uri-avertizeaza-noul-proiect-pentru-asa-numita-lege-big-brother-are-continuare-prevederi-neconstitutionale.htm
Romania: Data retention law declared unconstitutional (21.10.2008)
http://www.edri.org/edrigram/number7.20/romania-data-retention-law-unconstitutional
Decision of the Romanian Constitutional Court (8.10.2009)
http://www.legi-internet.ro/english/jurisprudenta-it-romania/decizii-it/romanian-constitutional-court-decision-regarding-data-retention.html