communication between persons via landlines, mobile phones, fax, radio or similar
devices. However, thanks to the technological development, the interpretation of this
term evolves. Nowadays it covers all sorts of communication transferred via telecommunications and electronic communications networks including communication
between computers or other communication devices, as well as any kind of IP traffic
regardless of whether it was generated by persons or computers. Even content data
transferred while surfing the web via electronic communications networks may be an
object of interception.
When defining the term “telecommunications traffic”, literature usually refers to
the Act on electronic communications.
40 This act itself doesn’t contain definition of
the term, but we may understand it as content transferred via electronic communications networks, which are defined by the act as transmission systems and, where
applicable, switching or routing equipment and other facilities, including network
elements which are inactive, and which permit the conveyance of signals.
41 Furthermore, section 89 of the Act on electronic communications, which deals with the
confidentiality of communication, provides a helpful hint of what telecommunications traffic means. It reads as follows:
§89 Confidentiality of Communication
(1) Undertakings providing a public communications network or a publicly available
electronic communications service shall implement technical and organisational measures to safeguard the confidentiality of the messages and the related traffic and location
data, which are transmitted via their public communications network and the publicly
available electronic communications services. In particular, such undertakings shall not
admit any tapping, message storage, or any other types of interception or monitoring of
messages, including the data contained therein and related thereto, by any persons other
than the users, without the consent of the users concerned, unless otherwise provided in
an Act. This shall not be to the prejudice of the technical storage of data as needed for
message transmission without affecting the confidentiality principle.
(2) A message means any information being exchanged or transmitted between a finite
number of subscribers or users via the publicly available electronic communications
service, except for the information transmitted as part of the public radio or television
broadcasting service via the electronic communications network, unless it can be
allocated to an identifiable subscriber or user receiving that information.
Interception of electronic communications may be conducted only after an
interception order is issued. The interception order is a decision sui generis, for
which can apply in preliminary proceedings only a public prosecutor, usually after a
consultation with respective police investigator.
42 Before applying, the public prosecutor usually verifies whether the criminal proceedings are conducted for a crime,
for which the interception can be ordered. The public prosecutor particularly
40 For example, see Šámal (2013).
41 Section 2 letter h) of the Act no. 127/2005 Sb., on electronic communications.
42 Opinion No. 1/2018 of the Supreme Public Prosecutors Office elaborated more on the necessary
requirements of interception request. It focuses heavily on the required argumentation of the
request, so it cannot be too general or blank. See in Czech online: http://www.nsz.cz/images/
stories/PDF/Stanoviska_Proces/2018/1_SL_719-2017.pdf.
142
R. Polčák et al.
devices. However, thanks to the technological development, the interpretation of this
term evolves. Nowadays it covers all sorts of communication transferred via telecommunications and electronic communications networks including communication
between computers or other communication devices, as well as any kind of IP traffic
regardless of whether it was generated by persons or computers. Even content data
transferred while surfing the web via electronic communications networks may be an
object of interception.
When defining the term “telecommunications traffic”, literature usually refers to
the Act on electronic communications.
40 This act itself doesn’t contain definition of
the term, but we may understand it as content transferred via electronic communications networks, which are defined by the act as transmission systems and, where
applicable, switching or routing equipment and other facilities, including network
elements which are inactive, and which permit the conveyance of signals.
41 Furthermore, section 89 of the Act on electronic communications, which deals with the
confidentiality of communication, provides a helpful hint of what telecommunications traffic means. It reads as follows:
§89 Confidentiality of Communication
(1) Undertakings providing a public communications network or a publicly available
electronic communications service shall implement technical and organisational measures to safeguard the confidentiality of the messages and the related traffic and location
data, which are transmitted via their public communications network and the publicly
available electronic communications services. In particular, such undertakings shall not
admit any tapping, message storage, or any other types of interception or monitoring of
messages, including the data contained therein and related thereto, by any persons other
than the users, without the consent of the users concerned, unless otherwise provided in
an Act. This shall not be to the prejudice of the technical storage of data as needed for
message transmission without affecting the confidentiality principle.
(2) A message means any information being exchanged or transmitted between a finite
number of subscribers or users via the publicly available electronic communications
service, except for the information transmitted as part of the public radio or television
broadcasting service via the electronic communications network, unless it can be
allocated to an identifiable subscriber or user receiving that information.
Interception of electronic communications may be conducted only after an
interception order is issued. The interception order is a decision sui generis, for
which can apply in preliminary proceedings only a public prosecutor, usually after a
consultation with respective police investigator.
42 Before applying, the public prosecutor usually verifies whether the criminal proceedings are conducted for a crime,
for which the interception can be ordered. The public prosecutor particularly
40 For example, see Šámal (2013).
41 Section 2 letter h) of the Act no. 127/2005 Sb., on electronic communications.
42 Opinion No. 1/2018 of the Supreme Public Prosecutors Office elaborated more on the necessary
requirements of interception request. It focuses heavily on the required argumentation of the
request, so it cannot be too general or blank. See in Czech online: http://www.nsz.cz/images/
stories/PDF/Stanoviska_Proces/2018/1_SL_719-2017.pdf.
142
R. Polčák et al.