20 years together

The Constitutional Court of Bulgaria adopted the arguments of Prof. Dr. George Dimitrov in favour of repealing the traffic data retention

18 November 2020

The Constitutional Court fully adopted the arguments presented by Prof. Dr. George Dimitrov and with its decision issued on November 17, 2020, declared as unconstitutional the amendments to the Electronic Communications Act (ECA), passed in March this year. After the outbreak of the Covid-19 pandemic, the possibility was introduced for the traffic data from mobile phones of people placed under quarantine to be retained for a term of 6 months and for the Ministry of the Interior to be able to access such data during this period. The amendments to ECA were appealed before the Constitutional Court, and Prof. Dr. George Dimitrov, in his capacity as a prominent expert in the field of information technology law, was among those invited to give an opinion on the issue.

The decision of the Constitutional Court cited the arguments of Prof. Dr. Dimitrov and his team – Nikola Stoychev and Christian Ivanov – on the issue of law enforcement agencies accessing traffic data of individuals. The retention of these data should be justified by a legitimate objective and in compliance with the principle of proportionality in law:

“In Prof. Dr. George Dimitrov's legal opinion, the thesis is argued that the disputed provisions as a whole do not comply with the principle of proportionality, and interference in therights of individuals is unjustified in view of the objective pursued. The tendency in the Bulgarian legislation has been traced for gradual expansion of the scope of retention and access to traffic and location data, and for the provided exceptions from this regime and the special rules for traffic data processing, as for data retention, purposes other than prevention and detection of serious crimes have been added. In 2016, the possibility for accessing the data was introduced under Art. 252b ECA for the needs of search and rescue operations. According to Prof. G. Dimitrov, the retention of traffic data is not unjustified in principle, however, it should be within the limits of a legitimate objective and in compliance with the principle of proportionality. It is noted that under the current regulation there are no clear and objective criteria, in the presence of which the law enforcement authorities can immediately request information about an individual, as it is enough for them to address a formulaic request for this individual’s traffic data to the operators and the latter will be obliged to provide them. The bodies of the Ministry of Interior have no obligation to submit documents in support of such request when requesting immediate access (type of disease, by whom it was diagnosed and for what period of time, when it deviated from the defined hospital regime, etc.), even in the contested legal provisions there is no requirement that this request should contain a full and exhaustive justification of the facts and circumstances, but only legal grounds. It is stated that the total six-month retention and access term, which also applies to the contested provisions, is too long, not limited to the term of the state of emergency and seems disproportionate and beyond what is necessary to achieve the defined objective.”

The decision of the Constitutional Court could be accessed from here.

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