Abstracts Communications and the Arts

Η άρση του απορρήτου των μορφών της τηλεπικοινωνιακής ανταπόκρισης για τη διακρίβωση εγκλημάτων

by Grigorios Tsolias

This dissertation approaches the special investigative act of the electronic communications lawful interception which is carried out through public electronic communications networks. The secrecy of electronic communications on public networks is raised in accordance with the substantive and procedural guarantees of the lawful interception legal framework. Communications that take place outside or over the public electronic communications network are protected by art. 19 par. 1 Hellenic Constitution in an absolute manner and lawful interception is not allowed. A central dimension constitutes the tripartite notions of “communication service provider-public network-electronic communication”. The paper focuses on the definition of these three concepts in the light of the legal framework of several legal orders. While the concept of the secrecy of electronic communication has been dealt with by theory and jurisprudence in the context of art. 19 par. 1 Hellenic Constitution, the paper proposes its interpretation in accordance with EU and European law. Secondary EU legislation (2002/58/EC), the jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) are taken into account in order to finally define the concept of “secret electronic communication” as well as the concept of “lawful interception of the communication”. It is noted that technological developments in the field of public electronic communications networks and the manner in which communication is transmitted or the use of electronic communications services as well as the use of the network has an effect on the definition of the concept of electronic communication, as well as on the applicable law. The abolition of signaling and its replacement by ip packets on the internet led to the abolition of the concept of “telephony” and consequently made it technologically impossible to distinguish between “internal” and “external” elements of communication. According to the “Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications” – “e-Privacy Regulation”) the distinction between the legal concepts of communication and its external elements (traffic and location data) shall be abolished. The content of electronic communications shall be defined as “electronic communications data” while traffic and location data shall be defined as “electronic communications metadata”. According to the EU legislator, the electronic communications fall within the scope of the legislation for the protection of the secrecy of personal data. Given the two fold legal status of communications and their inclusion both in the field of protection of the secrecy of communications and that of personal data, the paper proposes the application of the relating to processing of personal data principles when carrying out the special…