In Austria it is unconstitutional to compel telecommunication operators (TOs) to implement wiretapping equipment at their own expense. In a decision of 27 February 2003 the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) annulled a provision of the Telecom-munications Act (Telekommunikationsgesetz, TKG) whereby the burden of expenses for wire tapping equipment was imposed on the telecommunication operators.
Since 1997, sec 87 TKG requires TOs to install wire tapping equipment. This provision authorises law enforcement authorities to obtain traffic data from a TO. It provides that TOs are “obligated to cooperate to the necessary extent in the surveillance of telecommunication”. They are required to make available all equipment needed for the surveillance of a specific telecommunication to the prosecuting authorities. All data recorded by such equipment may be released to prosecuting authorities merely on the basis of a court decision pursuant to the Austrian Criminal Procedure Code (secs 149a et seqq).
Only in 2001 the Ministry for Traffic, Innovation and Technology issued an ordinance which specifies the obligations under sec 89 TKG, the Surveillance Ordinance (Überwachungs-verordnung, ÜVO).
Under sec 3 ÜVO the TOs must provide for different surveillance installations within their networks. In particular, they are obligated to furnish the following data upon a court’s request: The recording of calls from and to the subscriber line under surveillance; the number of the subscriber line under surveillance; the numbers dialled from the subscriber line under surveil-lance, even when a call is not completed; any incomplete numbers dialled from the subscriber line under surveillance, where an attempted call is prematurely terminated; the numbers of subscriber lines from which the subscriber line under surveillance is dialled, even when a call cannot be completed; in the case of mobile-telephone lines under surveillance, the cells carry-ing the call under surveillance; the beginning of the call or attempted call with date and time; the termination of the call or attempted call with date and time and the duration of the call.
In addition, starting from 2005, TOs have to comply with the European Standard ES 201 671 Version 2.1.1 of the European Telecommunications Standardization Institute (sec 4 para 1 subpara 4 ÜVO).
sec 89 TKG provides for a right of the TOs to be reimbursed for the pertinent cost of a single wiretapping. The reimbursement excludes, however, the cost of the necessary surveillance equipment and its installation.
Six major Austrian (fixed and mobile) telephone operators challenged the legality of this pro-vision before the VfGH. They argued that it infringed their fundamental rights to protection of property and to equality of treatment. Costing several million Euro, the obligation to install the required surveillance equipment imposed upon the TOs a financial burden that was not outweighed by any private benefit linked to it but was solely in the public interest for the prosecution of criminal activities. Furthermore, this financial burden was likely to increase in the future since the TOs were compelled to update the surveillance equipment in line with technological development.
In its decision, the VfGH affirmed the state’s power to commit private persons or entities (such as TOs) to perform public tasks or to cooperate in such. Therefore, the cooperation ob-ligations provided for by the TKG and the ÜVO as such are in line with the Austrian constitu-tion.
However, the Court also held that the cooperation obligations imposed upon the TOs must comply with the principle of proportionality provided for in the Austrian constitution. This principle requires that the costs of the TOs be balanced with circumstances creating a special legal and economic relation between the TOs and its (monitored) customers. Such circum-stances comprise the calculability of the expenses, the economic burden and the interest of the company in the required services and a possible endangerment created by the operation of the company’s business.
Since the law, by simply shifting all expenses to the TOs, lacked any observation of this duty of balancing, it violated the principle of proportionality. The Court found that it is not justified to impose such obligations on the TOs regardless of the nature and scope of the TOs´ obliga-tions to cooperate, and regardless of the content and extent of the wire tapping involved. Therefore, “the financial burden of the telecommunication operators and the preparation of copious devices is only justified in case of special circumstances and after a conducted bal-ancing of interests” (VfGH judgement, p 43). Mere budgetary constraints of the state, how-ever, cannot constitute a reasonable basis for the imposition of the duty to bear all costs of such an activity of public interest.
As a consequence, the Austrian government has to amend sec 89 TKG by the end of 2003, taking into account the principle of proportionality. By such amendment, the TOs will proba-bly be entitled to reimbursement of the cost incurred by the installation of the surveillance equipment required under the TKG and the ÜVO.
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