In the context of the recent terrorist events in France, the Ministry of Communication and Informational Society called for the reunion, as "an urgent matter," of an inter-institutional working group with the scope to reintroduce on the Romanian public agenda a package of laws on the mass surveillance of the population, although such laws were rejected in recent years by both the Court of Justice of the European Union and the Constitutional Court of Romania.
This package includes the law on the storage of data related to telephone and Internet users - the so-called Big Brother Law – and the law on the registration of users of prepaid cards and of Wi-Fi. Authorities consider that the cancellation of these laws created a "legal vacuum" in Romania, which make the country more vulnerable to possible terrorist attacks.
APADOR-CH, together with several other NGOs, sent a public letter in which it points out that state institutions have been aware of this "legal vacuum" for more than 3 months now. The request to have an inter-institutional working group to urgently consider the rejection of the Big Brother Law by the Constitutional Court is therefore an absurd measure that perpetuates past mistakes and restricts fundamental rights; if any further steps are necessary, they should go in the direction of a professional, thorough analysis, a process that should include all interested actors.
This rush to enforce unconstitutional laws shows us once again that the authorities, when deciding on these issues, are ignoring both the private sector and civil society.
Moreover, in its rush to legislate on mass surveillance under the pretext of the French terror attacks, the Romanian state is failing to consider several key elements:
1. France, the example invoked to justify this national institutional “restlessness,” has numerous laws on combating terrorism (including laws on the retention of traffic data and on the registration of prepaid cards). This did not prevent the events that took place in Paris on January 7, 2015. Moreover, well-known French politicians proved to be more cerebral, rejecting "the idea of legislation dictated by emotion."
2. Any new law adopted specifically on the storage of traffic data is likely to be contrary to fundamental rights; providers of communication services retain traffic data anyway, for commercial purposes. Access to this data can be achieved simply by clarifying Article 152 of the Code of Criminal Procedure.
3. The Constitutional Court's decision to reject the "Big Brother" package of laws dates back to July 2014, therefore "urgency" was invoked only to use the French tragedy as an excuse to propel legislative agendas that ignore fundamental rights.
Any emergency ordinance in this area, which directly affects fundamental rights, would be unconstitutional under Article 115 para. (6) of the Constitution.
A tragedy should not be turned into a pretext for restricting liberties and avoiding decisions of the Constitutional Court!