TERREG implementation in Romania: the Intelligence Service wants to become the police officer, prosecutor, judge and supervisor of the bailiff

In Romania the implementation of the of the TERREG Regulation, the European Union’s regulation to prevent the dissemination of terrorist content online, happened quite unexpectedly. The Ministry of Justice did not initiate a specific draft law through an open and transparent procedure, nor was it initiated by any other Ministry.

An online publication (Profit.to) discovered that another law proposal – that had a completely different objective, to make some amendments to law 535/2004 on preventing and combating terrorism – was used as a “vehicle” by the Senate Committee on National Security to propose new changes of the law for the TERREG implementation in Romania.

The amendments proposed by the Committee go far beyond the TERREG Regulation’s scope and confirm the worst fears of civil society

These concerns are not new as civil society organisations set off similar alarm bells during the adoption process at the EU level.

Thus, the Romanian implementation of the TERREG Regulation takes an unexpected turn –  the Regulation is used to give discretionary powers to the Romanian Intelligence Service which go way beyond the text of the Regulation:

1. The Romanian Intelligence Service gets powers equivalent to a police officer, prosecutor, judge, and executor’s supervisor in the case of online content “of a terrorist nature” and “terrorist propaganda”.
   The electronic communications regulator (ANCOM) is appointed as a mere enforcer, which has no powers to review the request or to refuse it, but instead receives the transparency obligations of Art 8 of the TERREG Regulation.
   The legality of some types of content thus comes to be determined not by any court or competent administrative authority (including putting it into balance against freedom of expression), but by the intelligence service. The principle of due process is thrown away and hidden from the public. The Romanian Intelligence Service is also supervising the “correct implementation” of the suppression orders.
2. Although the TERREG Regulation speaks exclusively of the obligation of hosting service providers to take down content on the internet, the proposed law adds a censorship measure by using ISPs as a tool to block “content of a terrorist nature”, even in the absence of a court order, at the simple request of the Intelligence Service.
3. In addition to the Regulation, another “major terrorist problem” has been detected and must be regulated: The blocking of a “.ro” domain name that “advocates for terrorism”.
   A user can very easily reserve any other identical domain name in the other 1500+ TLDs that exist on the internet today. Thus, forcing RoTLDs to take a domain out of use is not a real solution.

The draft law has now been sent to the Chamber of Deputies for debate, where it had unanimous support from the Human Rights Committee and the IT Committee.

Contribution by EDRi-member, ApTI