Mr. / Mrs. Senator,
The signatory organizations call on you to reject, in the plenary session in which it will be voted: the Draft law for amending and supplementing normative acts in the field of electronic communications and for establishing measures to facilitate the development of electronic communications networks (L532/2021, Communications Code), the provisions by which Article 10 index 2 is introduced, in its entirety, or sent them back to the Specialized Commissions for this purpose.
We remind you that the mentioned draft law has as its main purpose the transposition into Romanian legislation of the EU Directive 2018/1972 establishing the European Code of Electronic Communications. Contrary to the provisions of the Directive, the Government of Romania, as the initiator of the draft law, added some measures to extend the interception of electronic communication. It is precisely these provisions, that are not part of European law, that are controversial. Even in the form amended following the joint meeting of the Legal, Economic and Communications Committees on 8 February 2022, this article continues to raise a number of serious issues:
- Extending the interception of communications should NOT be done through the Communications Code. Providers of electronic hosting services with IP resources have no connection and are not regulated by European Directive 2018/1972 (European Communications Code) which the Communications Code has the role of integrating in the Romanian legislation. The addition of these providers to the list of those who have obligations to intercept communications or additional obligations to intercept (details in point 4, below) could be done only by amending the Code of Criminal Procedure, in a transparent process and respecting the legal guarantees.
- Providers of electronic hosting services (including those with IP resources) are already regulated by Law 365/2002 on electronic commerce, and the obligation provided by Article 10 index 2 of the Communications Code for these suppliers to notify ANCOM is also in conflict with the law already in force, with the Ecommerce Directive in force but also with the proposal for a European directive Digital Services Act, which is being debated in order to be adopted at EU level.
- Is forcing the providers of electronic hosting services with IP resources (and not only those on the territory of Romania, but all those who provide services on the territory of Romania) to create an infrastructure for intercepting content and to make it available to the criminal investigation bodies and SRI, not only under the conditions of the Code of Criminal Procedure (so with a warrant from the judge), but also under the conditions of Law no. 51/1991 on national security. In practice, theoretically speaking, Facebook could be forced to provide access to Facebook Messenger chat. And if a provider like Facebook can ignore the pressures of criminal investigation bodies, which act without a warrant from the judge, the same cannot be said about small Romanian companies, which provide such electronic hosting services with IP resources. They will no longer be able to guarantee the confidentiality of the information.
- Obligations to provide certain data – for example, the “access history with the related time moments” (practically any web page with the time, minute and second of the visit) does not exist in the Code of Criminal Procedure, so we are obviously talking about a broadening of the interception spectrum.
- Article 10 index 2 does not comply with the guarantees of the Romanian Constitutional Court, which has consistently stated that such vague and unclear texts cannot be constitutional, especially in the field of interception of communications and traffic data (Decision CCR 461/2014 par. 37;Decision CCR 17/2015 par. 63).
In order to solve these problems, we ask you to resubmit the draft law to the Commissions, or to vote on an amendment that removes from the text the second sentence of Art. 2, point 28 of the draft law.L532 / 2021(introducing Art. 10 index 2 in GEO 11/2011 on electronic communications).
Asociația pentru Tehnologie și Internet
Centrul pentru Inovare Publică
Sindicatul Roman al Jurnaliștilor MediaSind
Centrul pentru Jurnalism Independent
Asociația Națională a Internet Service Providerilor ANISP
Code for Romania
Asociația Parcul Natural Văcărești
Asociația Miliția Spirituală
CeRe: Centrul de Resurse pentru participare publică
Asociația Átlátszó Erdély (Transilvania Transparentă)