Czech Constitutional Court rejects data retention legislation

By EDRi · April 6, 2011

This article is also available in:
Deutsch: [Tschechisches Verfassungsgericht hebt Vorratsdatenspeicherung auf |]

The Czech Constitutional Court declared national data retention legislation
unconstitutional on 31 March 2011. This is part of the Electronic
Communications Act and its implementing legislation according to which
records of e-mails, phone calls, and SMS as well as websites accesses of
every citizen should be retained by telecommunications companies for a time
period of six months, as an implementation of the Data Retention Directive.
This court decision followed previous decisions of the constitutional courts
of Germany and Romania.

The complaint filed with the Constitutional Court was prepared by activists
from EDRi-member Czech civic rights organisation Iuridicum Remedium and 51
MPs from the Civic Democratic Party (ODS) and the Green Party (SZ) who
signed it in March 2010.

The Constitutional Court decision criticizes the Czech transposition of the
Data Retention Directive. The Czech legislation requires the retaining of a
larger number of data than the directive demands, where the use of data is
not limited to investigating terrorism and serious organised crime. There
was a lack of the principle of subsidiarity in the legislation related to
eavesdropping, although these data are equally sensitive. This has led to a
large number of requests for such data by the police. The national
legislation lacked, according to the constitutional court, clear and
detailed rules for the protection of personal data as well as the obligation
to inform the person whose data has been requested.

The court said that EU law was not part of the constitution of the Czech
Republic and that the directive could therefore not be reviewed by the
Constitutional Court. According to the court decision, the content of the
Data Retention Directive gives the Czech Republic sufficient space for
its constitutionally conformal transposition. However, the Constitutional
Court has doubts about the necessity and proportionality of the data
retention principle in the obiter dictum paragraphs (p. 55-57). The court
doubted whether the blanket monitoring of the communications of all citizens
in terms of intensity of intervention into the private sphere is necessary
and appropriate. The court also doubted the effectiveness of the use of the
retained data in combating crime, particularly with reference to the
possibility of anonymising communications. The police statistics show that
despite a significant increase in the number of requests for traffic and
location data, this did not translate into a proportional number of
committed and solved crimes.

The Constitutional Court also regards certain provisions of the
Criminal Act concerning the use of such data by authorities engaged in
criminal proceeding as highly questionable and it called on MPs to consider
its modification. According to the Court, it will be necessary to consider
each individual case in which data have already been requested in order to
be used in criminal proceedings, with respect to the principle of
proportionality regarding privacy rights infringement.

Text of the complaint (only in Czech)

Text of the court decision (only in Czech) – to be translated in English in
the next 2 weeks

Constitutional Court: Spying on Communication Declared Unconstitutional

Constitutional Court invalidates telecommunications data retention
law (1.04.2011)

Czech Republic: Constitutional Court Overturns Parts of Data Retention Law

(Contribution by Jan Voboril – EDRi-member IuRe – Czech Republic)