Slovakia: Mass surveillance of citizens is unconstitutional

Slovakia’s data retention law is now history. On 29 April, the Constitutional Court of the Slovak Republic ruled that the mass surveillance of citizens is unconstitutional. The decision was made in the context of proceedings initiated by 30 Members of the Parliament on behalf of the European Information Society Institute (EISi), a Slovakia-based think-tank.

In a non-public session, the Grand Chamber of the Constitutional Court (PL. ÚS 10/2014) ruled that provisions of Act on Electronic Communications (Act No. 351/2011 Coll.), which until now required mobile network providers to track the communication of their users, as well as provisions of the Penal Code (Act No. 301/2005 Coll.), and the Police Force Act (Act No. 171/1993 Coll.), which allowed access to this data, to be in contradiction to the constitutionally guaranteed rights of citizens to privacy and personal data. As a consequence, these provisions lost their binding effect.

According to now invalid provisions of the Electronic Communications Act, the providers of electronic communications were obliged to store traffic data, location data and data about the communicating parties for a period of six months (in the case of Internet, email or Voice over IP (VoIP) communications) or for a period of 12 months (in case of other communications). Data about unsuccessful calls was also stored for the same periods. Moreover, the legal framework regulating the access to data retention data was completely arbitrary and considerably less stringent than comparable provisions on wire-tapping.

In the opinion of EISi, the introduction of these obligations constituted a substantial encroachment upon the private life of individuals – especially because this mandated a blanket monitoring of all inhabitants of Slovakia, regardless of their innocence or prior behaviour. The data retention requirements mandated that every day the data about every inhabitant of Slovakia must be collected, amassing a profile of who called whom, to whom someone sent an SMS or email, when the person sent it, from which location, using what type of device or service, how long the communication took, and many others details. It almost goes without saying that combining of all this information made it possible to perfectly analyse the movements of every inhabitant of Slovakia using a mobile phone or the internet. This allowed the behaviour, circle of acquaintances, hobbies, health, sexuality and other information that citizens might prefer to keep to themselves to be predicted.

The decision marks an end to EISi’s five-year battle against mass surveillance. Soon after the launch of the now unconstitutional data retention requirements, EISi authored a short report pointing out the basic discrepancies between the Act on Electronic Communications (“the Act”) and its data retention provisions, and the fundamental rights embodied in the Slovak constitution, the EU Charter of Fundamental Rights and Freedoms, and the Convention for the Protection of Human Rights and Fundamental Freedoms. This report was then presented in the form of a motion to two local authorities, which, despite the evidence, reached the view that the data retention provisions do not lead to an interference with the fundamental rights and freedoms of citizens. , and no proceedings before the Constitutional Court were initiated.

EISi then put together a submission for the Constitutional Court, and started asking for the support of the Members of the Parliament, who can also initiate such a constitutional review. The submission gained the support of the required number of MPs, 30 signatures, and a motion was filed before the Constitutional Court successfully.

The decision of the Constitutional Court of the Slovak Republic was issued almost a year after the Court of Justice of the European Union (CJEU) proclaimed the Data Retention Directive invalid in the spring of 2014. At that time, the Constitutional Court of Slovakia promptly reacted by suspending the collection of data through a preliminary measure. By the virtue of the decision on 29 April, data collection was completely cancelled.

So far, only the final outcome of the decision is known. The reasoning of the court is expected to be available within three months.

EISi’s press release: The Slovak Constitutional Court cancelled mass surveillance of citizens (29.04.2015)
http://www.eisionline.org/index.php/en/projekty-m-2/ochrana-sukromia/109-the-slovak-constitutional-court-cancelled-mass-surveillance-of-citizens

Slovak Constitutional Court Suspends Data Retention Legislation (23.04.2015)
http://www.eisionline.org/index.php/en/projekty-m-2/ochrana-sukromia/74-us-data-retention-suspension

Data Retention before the Slovak Constitutional Court
http://www.eisionline.org/index.php/en/projekty-m-2/ochrana-sukromia/49-slovak-case-on-data-retention

The quest for privacy in Slovakia: The case of data retention
www.giswatch.org/en/country-report/communications-surveillance/slovak-republic

(Contribution by Matej Gera, European Information Society Institute – EISi, Slovakia)