Der Österreichische Verfassungsgerichtshof
(Austrian Federal Constitutional Court)
VfGH, G 37/02 ua, February 27, 2003
Outline - comments - relevant links
(Christian Schröder and Cédric Laurant, Electronic Privacy Information Center)
The Austrian Federal Constitutional Court held on Feb 27, 2003 that the statute that compelled telecommunication service providers ("TSPs") to implement wiretapping measures at their own expense is unconstitutional.
The issue most relevant for data retention in this case is whether the state statutory requirements violate TSPs' constitutional right of property.
Plaintiffs, several Austrian TSPs, argued that the Austrian telecommunications law which requires TSPs to provide for wiretapping equipment at their own expense is unconstitutional. Some TSPs additionally claimed that even the requirement to install the equipment, no matter who has to bear its cost, is a violation of the Austrian Constitution. The Austrian State, the Defendant in this case, argued that it has the right to require TSPs to install wiretapping equipment and that TSPs have to bear their cost.
The disputed legal provisions are sections 1 and 3 of Section 89, Telekommunikationsgesetz (Telecommunications Law or "TKG").
According to Section 89 (1), TKG, TSPs have to install and provide for surveillance tools to enable Austrian law enforcement agencies to fulfill their obligations to conduct investigations pursuant to the StPO (Code of Criminal Procedure)
Technical requirements specifications will be determined by secondary legislation, Section 89 (1)(2).
Section 89 (2) of the TKG stipulates that TSPs receive an adequate refund for their expenses for State-ordered wiretappings, although TSPs do not get any refund for the significant costs to install the wiretapping equipment, Section 89 (1)(2). Section 89 (3) stipulates that secondary legislation will define the technical standards for the surveillance requirements.
The Austrian Constitutional Court held that:
Wiretapping requirements were originally established only for state agencies internal use since state agencies used to provide all telephone services: they were required by law to implement wiretapping measures and to conduct eavesdropping on an individual basis and upon request by law enforcement. Application of these requirements to private companies must be interpreted in light of the Austrian Constitution and its general principle of proportionality1.
The Constitutional Court has ruled several times that the obligation for private companies to fulfill assignments of public interest is not unconstitutional. However, "it is not justified to impose such obligations on TSPs, regardless of the nature and scope of TSPs' obligations to cooperate, and regardless of the content and extent of the wiretapping involved. Therefore, a regulation that imposes a significant burden on third parties ("private Dritte") may only be justified for exceptional circumstances."
The interest for obtaining information about crimes is of such an important public interest that it can be justified to compel TSPs to cooperate with law enforcement agencies. It is necessary to compel TSPs to implement adequate techniques of surveillance, because they are the ones most competent to conduct surveillance due to their technical expertise. However, this does not mean that TSPs have to abide by those obligations at their own expense. The imposition of expenses for obligations carried out in the public interest may only be justified in exceptional cases if they are proportionate.
"According to constitutional interpretation, surveillance of telecommunications for law enforcement purposes is mainly the duty of the State, especially the Federal State. See Art. 10 Section 1 B-VG)."
Section 89 (1), TKG does not list or limit the expenses that TSPs have to pay. The fact that technical requirements may be changed every year and are only determined by secondary legislation does not meet the constitutional principle of clarity2 and proportionality.
Section 89 (1), TKG does not provide either for any other criteria that might reveal any reference to the basic rule of proportionality, in general or with respect to particular private companies." It may be justified to require TSPs to conduct surveillance, but "the determination of who has to bear expenses must be proportionate to the state and TSPs' interests. Because the statute does not reveal any consideration for the basic rule of proportionality, and because it fails to limit financial burdens, Section 89 (1)(2), TKG is unconstitutional." (…) The fact that the State may be facing budgetary restrictions is in itself not sufficient to justify current regulation of the expenses provided by Section 89 (1), TKG."
The Court therefore declared that Section 89 (1)(2), TKG, which imposes the burden of expenses for wiretapping measures on TSPs, is unconstitutional.
This decision means for TSPs that it is the Austrian state that will have to bear wiretapping implementation expenses as long as it cannot show exceptional justification for the expenses on the private sector. What it entails for the Austrian government is yet to see, as a Council of the European Union document of November 20, 2002 had showed that the Austrian government was planning on proposing a bill that would compel Austria-based telecommunication service providers to retain exchange data "for a given period for prosecution purposes"3 and had stated that the telecommunications industry had showed signs of "basic readiness [. . .] to agree to the introduction of [a retention] obligation."4
Outline of relevant Austrian laws and regulations:5
Section 89, TKG: this provision regulates the procedure for a law enforcement authority to obtain traffic data from a service provider. It provides that "service providers are obliged to cooperate to the necessary extent in surveillance of telecommunications." They are obliged to make available all equipment needed for surveillance of a telecommunication by Section 89 (1), TKG.
Such obligation is given concrete form in Section 3(2) of the Order of the Federal Minister for Transport, Innovation and Technology concerning the surveillance of telecommunications (Surveillance Regulation - ÜVO). Pursuant thereto, most telecommunication service providers must have ready in their installations the facilities for making available content and any other information necessary for the surveillance of telecommunications; this means above all: the address of the subscriber line under surveillance, the addresses dialed from the subscriber line under surveillance, even when a call does not get through, any incomplete addresses dialed from the subscriber line under surveillance, where an attempted call is prematurely terminated, the addresses of subscriber lines from which the subscriber line under surveillance is dialed, even when a call does not get through, in the case of mobile-telephone lines under surveillance, the cells carrying the call under surveillance, the beginning of the call or attempted call with date and time, the end of the call or attempted call with date and time and the duration of the call. Straight internet-service providers are not covered by the obligations in the Surveillance Regulation (ÜVO).
Both content and exchange data are released to prosecuting authorities by the service provider solely on the basis of a court decision pursuant to the Code of Criminal Procedure (Sections 149a et seq. of the StPO).
As from 1 October 2002, where providers are obliged to cooperate (Section 89 (2), TKG), they must, in addition, be instructed as to the scope of that obligation by court decision. On the basis of a court decision, providers are obliged to release exchange data. This is done by providers' employees examining the relevant data and communicating them to the court or to the Police or Gendarmerie Department responsible for the investigation.
Decision is available in German at http://www.vfgh.gv.at/vfgh/presse/G37-16-02.pdf or http://www.epic.org/privacy/intl/austrian_ct_dec_022703.html. (For a translation into English, check Altavista's Babelfish translation tool at http://babelfish.altavista.com/babelfish/)
LINK to TKG in German:
EPIC international Web page on data retention:
 This is a general constitutional requirement every statute has to meet. The rule of proportionality limits the extent of state powers’ by balancing the controversial interests.
 The principle of clarity is a general constitutional requirement that every statute has to comply with. This rule imposes legislative authorities, when their legislation affects laws limiting constitutionally-protected rights, to enact them in a sufficiently detailed way so as not to provide government authorities too much discretion when implementing laws through decrees or other regulations.
 Note addressed from the General Secretariat of the Council of the European Union to the Multidisciplinary Group on Organized Crime, "Answers to questionnaire on traffic data retention," 14107/02, LIMITE, CRIMORG 100, TELECOM 42 (Nov. 20, 2002) http://servizi.radicalparty.org/data_retention/.