As a network of civil organizations who are dedicated to the preservation and promotion of democratic values, the rule of law and protection of human rights, “Network 23” expresses concern about the way in which the reform of the system for interception of communications is being implemented.
Citizens associations working on this are were not included in the working group that drafted the new legal solutions. The reform model, which predicted the establishment of a new state agency – OTA, was chosen without a public debate and it does not fully respond to the EU recommendations from the urgent reform priorities. In addition, it is worrying that the final versions of the laws that the Government has proposed in Parliament have fundamentally changed compared to the draft texts that the public was called on to make comments. Moreover, a large part of these changes do not come from remarks that the citizens addressed to the Government. Entire Articles are added in the laws which are trying to legitimize the technology for interception of communications without the mediation of the operators (and the new OTA agency), that is, devices that catch the signal of all mobile communications in a certain radius. There are no legal measures that will ensure adequate supervision and control over the use of such technologies, nor is an assessment done of the impact that these devices will have on the right to privacy of citizens. With the introduction of these new technologies and the new state agency (OTA) in the laws, the already expensive system of monitoring of communications will become even more expensive.
The scope of criminal offenses for which monitoring of communications is envisaged in the new versions of the draft laws has been extended rather than narrowed. It is envisaged to monitor communications not only to persons who are suspected of preparing and committing criminal offenses, but also on members of their families, “other close persons” and other people “who in any way are in communication with them”. This extended scope of monitoring communications does not correspond to international law in this area and creates an additional risks of abuse.
Worrying is the fact that the new legal provisions do not remove the direct effect of the state organs to the content of the electronic communications of every citizen of the Republic of Macedonia, as well as the retention of data for communication traffic of every citizen, that is, with who, when and from which location we have communicated. Such provisions are contrary to the Constitution, which in Article 17 guarantees the freedom and secrecy of letters and all other forms of communication.
Although the reforms on communication monitoring have been established as a condition of the European Union, the new legal texts are not aligned with the law of the Union, and in particular with the 2016/690 Directive on the processing of personal data in the police and criminal law and the General Data Protection Regulation 2016/679. The reform is also incompatible with the judgment of the European Court of Justice (Joined Cases C-293/12 and C-594/12 of 2014), which annulled the European Union Directive, which required gathering data on the location of all citizens, but rather introduce even more invasive privacy measures. Thus, the envisaged changes provide an obligation for operators to store data on the geographical location of all users even in the moments when we do not have communication activity on our mobile phones. This means that at the request of state bodies, and without a court order, the operators will be obliged to provide information where we have been and where we were moving in every second, which is unacceptable in a democratic society and violates the fundamental human right to a private life.
In the legal texts addressed to the Parliament, the Government without a clarification has deleted the provision by which it was supposed to allow the Parliamentary Supervisory Commission to call the heads of the authorized bodies for interception of communications, OTA and the operators in order to determine the legality of their actions.
In the comments sent to the Government, the member organizations of Network 23 pointed out all the other detected challenges and problems in the laws that regulate this area, but only a small part of them were incorporated in the legal proposal. Therefore, we appeal to the Parliament to give detailed consideration to the CSO’s remarks regarding the proposed reforms, the MPs should intervene in the draft laws and, if necessary, approve the preparation of completely new legal proposals that will be harmonized with the law of the European Union. We emphasize that it is illegal to pass the legal decisions in the Parliament without discussing them with the Parliamentary Supervisory Commission of the Monitoring of Communications.
After all the scandals that have continuously shaken the state from its independence until now, we emphasize the need for comprehensive and substantive reforms that will enable the restoration of the citizens trust in the institutions and protection of their privacy, and in accordance with the detailed guidelines of the European Union.