A tragic failure by the police to save a teenage girl who was abducted but managed to call the 112 emergency number three times before she was murdered, led to the adoption of a new Emergency Ordinance in Romania. The law introduces several measures to improve the 112 system, one of which is mandatory SIM card registration for all prepaid users. Currently approximately ten million prepaid SIM cards are used in Romania.
This is the sixth legislative attempt in the last eight years to pass legislation for registering SIM card users despite a Constitutional Court decision in 2014 deeming it illegal. The measure was adopted through a fast legislative procedure and is supposed to enter into effect on 1 January 2020.
It seems like the main reason to introduce mandatory SIM card registration is that authorities want to localise the call to the emergency number and punish false emergency calls. However, this measure is not likely to be efficient for the purpose, as anyone who buys a SIM card could obviously give it to someone else. Another reason is to identify the caller in real emergency situations, to be able to more easily locate them and send help.
Romania is one of the few countries in the European Union where calling the emergency number without a SIM card is not possible. This has been a deliberate decision taken by Romanian authorities to limit the number of “non-urgent” calls.
After the Emergency Ordinance was proposed, EDRi member ApTI, together with two other Romanian NGOs, launched a petition to the Ombudsman and the government calling for this law not to be adopted. After civil society’s calls for a public debate, the Ministry of Communications organised an oral hearing in which the participants were given no more than five minutes to express their views, without the possibility to have an actual dialogue. The Emergency Ordinance was adopted shortly after the hearing, despite the fact that the Romanian Constitution explicitly states that laws which affect fundamental rights cannot be adopted by emergency ordinances (Article 115 of the Romanian Constitution).
What did the court say in 2014?
In 2014, the Constitutional Court held that the “retention and storage of data is an obvious limitation of the right to personal data protection and to the fundamental rights protected by the Constitution on personal and family privacy, secrecy of correspondence and freedom of speech” (para. 43 of Decision nr. 461/2014, unofficial translation). The Court explained that restricting fundamental rights is possible only if the measure is necessary in a democratic society. The measure must also be proportionate, and must be applicable without discrimination and without affecting the essence of the right or liberty.
Collecting and storing the personal data of all citizens who buy prepaid SIM cards for the mere reason of punishing those who might abusively call the emergency number seems like a bluntly disproportionate measure that unjustifiably limits the right to private life. At the same time, such a measure inverses the presumption of innocence and automatically assumes that all prepaid SIM card users are potentially guilty.
What’s the current status?
The Ombudsman listened to civil society’s concerns, and challenged the Ordinance at the Constitutional Court. Together with human rights NGO APADOR-CH, ApTI is preparing an amicus curiae to support the unconstitutionality claims.
In the meantime, the Ordinance moved on to parliamentary approval and the provisions related to mandatory SIM card registration were rejected in the Senate, the first chamber to debate the law. The Chamber of Deputies can still introduce modifications.
Asociatia pentru Tehnologie si Internet (ApTI)
Petition against Emergency Ordinance on mandatory sim card registration (only in Romanian, 12.08.2019)
ApTI’s response to the public consultation on Emergency Ordinance on mandatory SIM card registration (only in Romanian, 21.08.2019)
Constitutional Court decision nr. 461/2014 (only in Romanian)
Timeline of legislative initiatives to introduce mandatory SIM card registration (only in Romanian)
(Contribution by Valentina Pavel, EDRi member ApTI, Romania)