ments, prior authorisation of a judge is required,
34 unless the person whose rights
and freedoms are to be interfered with gives their express consent.
35 However, there
might arise a problem with future investigation in such cases, because the withdrawal of the consent will result in immediate discontinuation of the surveillance and
access to data. Furthermore, authorisation of the judge allowing the surveillance of
the content covers only access to the data that was stored before the first access.
A different situation is in the cases when access to “in-traffic data” is necessary.
Examples of such data are emails and other data that are received thanks to the
automatic synchronisation after the device is seized, or a data which are added to the
cloud storage after the police gained access to it. In such cases, LEA must follow a
procedure defined in Section 88 of the Criminal procedure code, which deals with
interception and recording of telecommunications.
36 Apart from that, if LEA need
access to the traffic and location data held by electronic communication service
providers (so-called “data retention”), they must follow another specific provision—
section 88a of the Code of Criminal Procedure.
37
Finally, in cases, when none of the abovementioned provisions is applicable,
LEA can try to get the data through the application of a general provision covering
obligation of cooperation with public authorities in criminal investigation. Section 8
subsection 5 of the Code of Criminal Procedure states that in situations when there is
not applicable any special law, information may be requested for criminal proceedings upon the prior consent of the judge. Example of such information might
be location and traffic data held by other persons than electronic communication
service providers. For example, information service providers can have and often do
have information which would, by their nature, fall within a definition of location
and traffic data, but proceedings following section 88a of the Code of Criminal
Procedure in such cases cannot apply, because it is by its scope limited to electronic
communication service providers.
4.1 Interception of Communication Data
In the Czech Republic, interception of communication is seen as a serious breach of
protection of the right to privacy.
38 Therefore, the law contains relatively rigorous
34 See section 158d, subsection 3 of the Code of Criminal Procedure.
35 See section 158d, subsection 6 of the Code of Criminal Procedure. Should the collected data be
used as an evidence during the criminal proceedings, a proper protocol should be prepared, which
contains an information how the access was granted as well as the written consent of the person. The
Constitutional Court confirmed this approach in its decision No. III. ÚS 3844/13.
36 See in Czech: Polčák et al. (2015), pp. 121–137.
37 Both interception of electronic communication and data retention is discussed in more detail
bellow.
38 See e.g. decision of Czech Constitutional Court No. II. ÚS 502/2000, followed by Decision
No. II. ÚS 615/06-1 in which the Court formulated and interpreted necessary conditions for
140
R. Polčák et al.
34 unless the person whose rights
and freedoms are to be interfered with gives their express consent.
35 However, there
might arise a problem with future investigation in such cases, because the withdrawal of the consent will result in immediate discontinuation of the surveillance and
access to data. Furthermore, authorisation of the judge allowing the surveillance of
the content covers only access to the data that was stored before the first access.
A different situation is in the cases when access to “in-traffic data” is necessary.
Examples of such data are emails and other data that are received thanks to the
automatic synchronisation after the device is seized, or a data which are added to the
cloud storage after the police gained access to it. In such cases, LEA must follow a
procedure defined in Section 88 of the Criminal procedure code, which deals with
interception and recording of telecommunications.
36 Apart from that, if LEA need
access to the traffic and location data held by electronic communication service
providers (so-called “data retention”), they must follow another specific provision—
section 88a of the Code of Criminal Procedure.
37
Finally, in cases, when none of the abovementioned provisions is applicable,
LEA can try to get the data through the application of a general provision covering
obligation of cooperation with public authorities in criminal investigation. Section 8
subsection 5 of the Code of Criminal Procedure states that in situations when there is
not applicable any special law, information may be requested for criminal proceedings upon the prior consent of the judge. Example of such information might
be location and traffic data held by other persons than electronic communication
service providers. For example, information service providers can have and often do
have information which would, by their nature, fall within a definition of location
and traffic data, but proceedings following section 88a of the Code of Criminal
Procedure in such cases cannot apply, because it is by its scope limited to electronic
communication service providers.
4.1 Interception of Communication Data
In the Czech Republic, interception of communication is seen as a serious breach of
protection of the right to privacy.
38 Therefore, the law contains relatively rigorous
34 See section 158d, subsection 3 of the Code of Criminal Procedure.
35 See section 158d, subsection 6 of the Code of Criminal Procedure. Should the collected data be
used as an evidence during the criminal proceedings, a proper protocol should be prepared, which
contains an information how the access was granted as well as the written consent of the person. The
Constitutional Court confirmed this approach in its decision No. III. ÚS 3844/13.
36 See in Czech: Polčák et al. (2015), pp. 121–137.
37 Both interception of electronic communication and data retention is discussed in more detail
bellow.
38 See e.g. decision of Czech Constitutional Court No. II. ÚS 502/2000, followed by Decision
No. II. ÚS 615/06-1 in which the Court formulated and interpreted necessary conditions for
140
R. Polčák et al.