4 December 2001. Thanks to SA.
Human Rights Bodies Criticize Romanian Ordinance on Intercepting Communication
Document Number: FBIS-EEU-2001-1130
Document Date: 30 Nov 2001
Sourceline: EUP20011130000174 Bucharest Evenimentul Zilei in Romanian 30
Nov 01 p 5
Citysource: Bucharest Evenimentul Zilei
Language: Romanian
Subslug: Report by Nicoleta Savin and Ondine Ghergut: "The Ordinance Watching
You"
[FBIS Translated Text]
Terrorism became the number one enemy following the 11 September attacks, but before that it was not defined and punished under the Romanian Penal Code. This is why on 25 October the executive passed Emergency Ordinance 141 to punish acts of terrorism and violations of public order. The first six articles mention crimes that already exist in the Penal Code, which "when they are committed with the purpose of seriously disturbing the peace by intimidation, terror, or by creating states of panic," are defined as acts of terrorism. Articles 7 and 8 seem to be taken from another law. Their wording reminds of the regulations that allowed the former Securitate to wiretap phones and read the mail. However, this time it is not the Interior Ministry [MI] that is in charge of receiving and using information, or any other institution with powers to investigate terrorism cases, but the communication and information technology [IT] minister, exclusively. Article 7 is worded permissively, and it allows for expanding surveillance over individuals who have no connection with terrorism. In the current wording, approved under signature by Prime Minister Adrian Nastase, Justice Minister Rodica Stanoiu, and Interior Minister Ioan Rus, Articles 7 and 8 of Ordinance 141 violate the Constitution and jeopardize fundamental human rights and freedoms, which are protected by the legislation of any democratic state. Eight human rights organizations have already signed a protest note requesting the deletion of Article 7, and the list remains open until the document is submitted to parliament.
Constitution on Its Knees
Ordinance 141, passed on 25 October, was published in Monitorul Oficial [Official Gazette] on 31 October. Under Article 7, it reads in black and white, "operators of mail and telecommunication services shall have the duty to communicate immediately to the communication and information technology minister, upon written request from the minister, the necessary information to identify individuals who have committed the crimes provided for in this emergency ordinance." Therefore, the communication minister can request from operators in Romania information on the mail, electronic, or telephone communication of any person suspected of having committed a deed that is defined as an act of terrorism by this ordinance, from murder up to an ordinary threat. The wording of this text -- extremely general, without direct references to other laws -- leaves many questions without answers. The most important question is who guarantees the correctness of the requested checks and the justified use of the received information, as long as the ordinance does not mention judicial control or the role of the prosecutor? The text does not regulate the procedure clearly, and the fuzziness of the wording leaves room for arbitrary interpretations, over zeal, abuse, and suspicions of all kinds.
Article 8 of the ordinance tells us how expensive it is not to obey the orders of the communication minister: "Non-observance by the mail and telecommunication operators of the duty provided for in Article 7 shall be a misdemeanor, and it shall be punished by fine of 100 million lei up to 500 million lei." Considering such fines, it is hard to believe there will be some operators who will not respond "immediately" to the requests of [Communication and IT] Minister Dan Nica, as the ordinance requires. This happens even if the law requires them to violate their professional ethics and to offer data that are defined as confidential or data encrypted by the citizens, who pay special fees for this service. This way, an unlisted telephone number is no longer secret, a postal box no longer assures confidentiality for the individual who rented it, and communication via email or the Internet becomes unsafe. On the other hand, the mail or telecommunication operator will not be able to turn down the request of the concerned minister, the communication minister, without fearing consequences, as he needs the minister's signatures and approvals every step of the way to conduct his business.
"An Administrative Measure Beyond Any Judicial Control"
Human rights organizations denounced the provisions of Article 7 of Ordinance 141 immediately after publication. Eight of them -- Accept, APADOR-CH [Association for the Defense of Human Rights in Romania -- the Helsinki Committee], Arin, Attitude (in the city of Cluj), the Catavencu Academy Press Monitoring Agency, the Logistical Tactic Center, Grado, and the Pro Europe League (in the city of Targu Mures) -- signed a protest note requesting parliament to eliminate Article 7. They consider it "unacceptable," because "the entire mail or telephone communication of all individuals in Romania could be watched based on a purely administrative measure, taken inside a ministry, which will be beyond any and all judicial control." The protesters believe not even the pretext of the fight against terrorism can justify jeopardizing basic human rights and freedoms. And the confidentiality of mail and communication is one of these rights, paid for with blood in 1989.
What Is Not Banned Is Allowed
Minister Nica told us he can request any information on any person from mail or telecommunication operators, only on indication from a prosecutor or a judge. However, it is precisely this very important point that is missing in the text of the ordinance we are incriminating.
This omission is extremely dangerous for democracy because, according
to a principle of law, whatever is not banned is allowed.
Nica mentions and explains several other laws to us (that have something
to do with reading mail and wiretapping phones). These
laws clearly define the role of the prosecutor or judge, so these laws would
protect us against possible abuse committed by a telecommunication
minister. The ordinance was not signed by Minister Nica,
which means he did not participate in drafting it. If he
had participated, the text of the ordinance would have surely included the
important role played by the prosecutor or judge. We also
mention that, although he was out of the country, Minister Nica responded
to us immediately, in approximately one hour, which is something his colleagues
did not do.
[Description of Source: Bucharest Evenimentul Zilei in Romanian -- popular, privately owned daily; known for investigative journalism and criticism of the political establishment without regard to political orientation]