Monitoring and Supervision. June 15, Rotterdam 1 MONITORING ELECTRONIC COMMUNICATIONS: PRIVACY ISSUES Prof. Rimantas Petrauskas, Assoc. prof. Darius Stitilis, Dr. Irmantas Rotomskis, Mykolas Romeris University, Lithuania

Monitoring and Supervision. June 15, Rotterdam 2 Control off electronic communications for criminal investigation purposes n Discussions in Lithuania about possibility of violations of privacy in electronic communications by investigation institutions; n There is possibility for criminal investigation purposes to interference in the private life in electronic communications, for example to record telephone conversation, etc.; n Control of electronic communications for criminal investigation purposes may be divided in two groups: 1) control of traffic data and 2) real-time collection of content and traffic data.

Monitoring and Supervision. June 15, Rotterdam 3 Control off traffic data (I) n Traffic data means any data processed for the purpose of the conveyance of a communication on an electronic communication network of for the billing thereof; n Common principle: monitoring of electronic communications (i.e. control of traffic data) may be possible only with the permission of a judge (court sanction); n According to our review done, in major foreign states the control of traffic data shall be authorized by the court; n The criminal procedure code of the Republic of Lithuania does not require any court sanction for the control of traffic data. However, there is the Constitution of the Republic of Lithuania, that requires court sanction in the case of interference in the private life.

Monitoring and Supervision. June 15, Rotterdam 4 Control off traffic data (II) n The new directive on retention of traffic data No. 2006/24/EC; n The transfer of a Directive on the retention of communications traffic data No. 2006/24/EC to the legal system of the Republic of Lithuania may be problematic because of valid constitutional norms regarding private life and the decision of Constitutional Court of the Republic of Lithuania of 2002.

Monitoring and Supervision. June 15, Rotterdam 5 Real-time control off content and traffic data (I) n There is opinion, that the requirements for control of content data should be more stringent that the requirements regarding control of traffic data; n The line drawn between traffic data (who someone calls, when, for how long) amd communication data (the content of telephone call) is drawn from the traditional telephone infrastructure. Adapting this to the Internet is particular quite different, if at all possible. Is communication the content of packages? Is traffic data just packets headers? O is traffic data clickstreams, or http-requests?

Monitoring and Supervision. June 15, Rotterdam 6 Real-time control off content and traffic data (II) n The control of electronic communications during operational activities: the requirements to such control, provided in the Law on operational activities are the same for the traffic data, also for the content data; n The control of electronic communications during criminal procedure: the requirements to such control, provided in the Law on criminal procedures differ: control of content data are more stringent. In this case the problem is regarding separation of content and traffic data in internet.

Monitoring and Supervision. June 15, Rotterdam 7 Supervision of electronic communication control for criminal investigation purposes n The need of special independent supervision institution; n At that moment acredited institution, related to black boxes is State Security Department. But this department also provides operational activities and controls electronic communications itself; n Another form of supervision of electronic communication control for criminal investigalion purposes is Parliamentary control, which in Lithuania is weak and should be strenghtened.

Monitoring and Supervision. June 15, Rotterdam 8 Conclusions (I) n The lack of secondary legislation acts, related to control of private life for criminal investigation purposes in Lithuania; n The importance to Lithuanian electronic communication control process also may have the transfer of a Directive on the retention of communications traffic data No. 2006/24/EC, which may be complicated; n The requirements for the control of content data and traffic data for criminal investigation purposes differ (or should differ). But to separate content data from traffic data in internet environment is quite difficult;

Monitoring and Supervision. June 15, Rotterdam 9 n Parliamentary control of supervision of electronic communication control for criminal investigalion purposes is weak in Lithuania is weak and should be strenghtened n Also, there is need of special independent institution for supervision of electronic communication control for criminal investigation purposes in Lithuania. Conclusions (II)

Monitoring and Supervision. June 15, Rotterdam 10 Thank you for attention