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The Supreme Court on Friday ruled that data internet and mobile communications services providers are obligated to collect and store cannot be used in criminal proceedings as Estonia’s comprehensive data storage regulation is contrary to EU law. The prosecutor general and the justice and internal affairs ministries find that the decision could make collecting evidence impossible in some cases.
The Supreme Court decision robs the prosecution and courts of the right to require ISPs to surrender calls and location data collected and stored for use in offense proceedings as provided by the Electronic Communications Act. Only data received before the October 6 ruling of the European Court of Justice in the La Quadrature du Net case is admissible. The police are still entitled to ask mobile communications providers for names of device owners.
Veiko Kommusaar, deputy secretary general of the Ministry of Internal Affairs for internal security, said that the decision could have a significant impact on communications data inquiries in criminal proceedings. However, whether and to what extent communications data inquiries will be legal in the future requires analysis. Kommusaar said that communications devices are becoming an increasingly important part of how crimes are committed. “Communications data has in many cases been indispensable in solving crimes, which is why the decision might make solving such crimes much more difficult or even impossible in some cases,” he explained.
Prosecutor General Andres Parmas said that the effect of the Supreme Court decision will have to be evaluated separately for each case where phone records have been used in criminal proceedings, and that no generalization can be made at this time. “It is clear that the decision and corresponding changes in judicial practice will affect proceedings where phone records are the principal piece of evidence,” Parmas said.
The prosecutor general emphasized that most crimes are committed using communications devices, which is why the decision will make solving crime more complicated, time-consuming and expensive. “In some cases, collection of evidence could become impossible in light of the decision.” Parmas added that the decision affects feelings of security in society and will result in the Prosecutor’s Office being able to help fewer victims. “Access to phone records has been an indispensable tool for us and helped us solve many crimes,” he added.
That said, this is not the first time the prosecution has had to reorganize its work following a Supreme Court decision, the prosecutor general admitted. “We hope that the legislator will introduce necessary changes in a way that will not force victims to suffer ever more,” Parmas said.
Markus Kärner, deputy secretary general for criminal policy of the Ministry of Justice, said that situations where phone records constitute initial information based on which an investigation can be launched have become common. “Keeping of phone records has made it possible to identify communication between suspects and victims after the fact, as well as the location of persons at the time the act was committed,” Kärner pointed out.