No More Duty to Store Operational and Localisation Data

Beginning on 12 April 2011, operators and providers of public telecommunications services do not have to, or rather may not, store operational and localisation data about their customers; neither may they disclose them to public authorities. Originally imposed on the operators and providers by Section 97(3) of the Czech Electronic Communications Act, the duty to store the data has been cancelled by the Constitutional Court of the Czech Republic (the "Court") as of 12 April 2011; in addition, Section 97(4) of the Act has been cancelled as well.

The Court thus agreed with the group of Deputies that filed a petition to cancel the duty, as well as with operators who pointed out the duty's unclear definition. Operators are still allowed to store the data, but only for a very limited time, in a very limited scope and for specific purposes defined by the law.    

Using a number of arguments, the Court based its decision mainly on the breach of the proportionality principle, stating that infringements on the fundamental rights guaranteed by the Czech Republic's Charter of Fundamental Rights and Freedoms (the "Charter") is acceptable only if the public interest needs to be protected.     

The Court further pointed to the vagueness of the provision concerned, namely to the failure of the Act to provide for a definite list of entities entitled to access the operational and localisation data, as well as to the failure to clearly define the aim of such access. In the Court's view, the right was thus overused by the police in the past. In 2008, 340,000 crimes were committed, of which 128,000 were cleared, whereas 131,000 requests to disclose the data were recorded by the operators. The requests thus clearly related not only to grave offences, but to common crimes as well.   

While indicating in its decision (File Ref. Pl. ÚS 24/10) that the duty to store the operational and localisation data provided for by the EU Data Retention Directive is not unconstitutional as such, the Court, however, simultaneously put the use of such an instrument in the future into question. It referred, for instance, to anonymous SIM cards that, according to the police, are used for communication purposes in up to 70% of crimes; these cards are not subject to the operational and localisation data duty. 

In its decision, the Court further repeated a quite important opinion that the protection of the right to privacy in the form of the right to information self-determination under Articles 10(3) and 13 of the Charter shall apply not only to the contents of messages communicated over the phone, but also to data about the telephone numbers dialled, the call date and time, the call duration, and the base transceiver stations (BTS) providing for mobile telephone communication. Referring to the Court's case law, it can be stated that Article 13 of the Charter also provides for the protection of information about the telephone numbers dialled and other related data, such as the call date and time, the call duration, and the BTS IDs, as these data form an integral part of telephone communication.

This opinion is also important in connection with the employers' monitoring of staff communication. Discussions about this issue in the long term within the legal practice often conclude that while the contents of messages transmitted may not be monitored by employers, the email headers with information about the message receiver, sent date, or message ID/subject may. How viable this opinion is in the light of the Court's case law, however, remains a question.   

The Court's decision in respect of storing the operational and localisation data and its disclosure to the police will bring about a number of significant impacts. It may, for instance, lead to the challenging of final judgments convicting criminals of crimes on the grounds of these data. In this respect, the Court stated that the use of the data already requested within criminal proceedings shall be investigated by courts with regard to the proportional infringement on the right to privacy in each individual case. The courts shall thus weigh the seriousness of the offence tried within the given criminal proceedings.