Secret of Communications (conversations, phones, SMS, Whatsapp…)

The Right to the Secrecy of Communications.

This collaboration has summarized and incorporated literal extracts of the recent Jurisprudential Doctrine on this subject. In fact, most of the rulings of the Supreme Court and Constitutional Court of Spain on the secrecy of communications have been included.

For those interested in this topic, we also recommend this one: Is it legal to record a conversation?

Contents of this collaboration.

1.      Legal Coverage of the Secret of Communications

2.      Legitimate Exceptions, Restrictions or Interferences to the Secrecy of Communications

3.      Exclusive competence of the judges (in Spain)

4.      Six Requirements strictly necessary to adopt the intervention of the secrecy of communications

5.      What  requirements does the legal motivation require?

6.      What qualities must the objective data have to adopt the resolution?

7.      Minimum content of the resolution agreeing to the intervention of the secrecy of communications.

8.      Is it considered illegal to obtain the identification data of the telephones?

9.      When is it considered that there is sufficient evidence to allow the interception of the right to secrecy of communications?

10.  Specific regulation in Spain on this matter

Legal Coverage of Communications Secrecy

The secrecy of telephone communications is a Fundamental Right, guaranteed in the following systems:

1. Spanish Constitution: Article 18.3 – https://www.boe.es/legislacion/documentos/ConstitucionINGLES.pdf

2. Universal Declaration of Human Rights, adopted and proclaimed by the 183^rd General Assembly of the United Nations in Paris on 10 December 1948 (UDHR), Article 12. https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement

3. European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), November 4, 1950 in Rome, Article 8. https://www.echr.coe.int/documents/convention_eng.pdf

4. International Covenant on Civil and Political Rights (ICCPR), December 16, 1966, New York, Article 17 https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

5. Charter of Fundamental Rights of the European Union, Art. 7 https://www.europarl.europa.eu/charter/pdf/text_en.pdf

6. All the above references proclaim the right against any interference or arbitrary attack against the secrecy of your correspondence and communications. The secrecy of communications affects the Dignity of the person, affects the development of his/her personality and is a foundation of social peace and political order. For this reason, it is a fundamental right that guarantees other fundamental rights.

Legitimate Exceptions, Restrictions or Interferences to the Secrecy of Communications

(1) crime prevention (investigation and punishment)

Exclusive competence of the judges:

No one except a judge (in the context of an investigation) may order the intervention of communications. In no case, and under no pretext, can the intervention of communications be ordered, except through a judge.

Many legal systems allow, in exceptional cases, for persons other than judges (government, security agencies, CNI, etc.) to intervene in communications. But this is not the case in Spain.

Six strictly necessary requirements to adopt the intervention of the secrecy of communications

1) Judicial Resolution. That is, the jurisdictionally of the same, i.e. that they be authorized and, subsequently, controlled by the judicial authority, because the judge is the only authority with constitutionally conferred power and responsibility to determine the appropriateness of the measure, without forgetting the protection of the rights of those who suffer it.

2) A judicial resolution, sufficiently motivated,

What are the requirements for the reasoning of the court decision?

(1) It is strictly necessary to justify the legal criteria enabling the intervention (STC 253/2006, of 11 September).

(2) but it cannot be demanded that facts or data be proven in an exhaustive manner; indications and a reference to the background of the investigation proceedings, supported by two documents, are sufficient: (2.1) Request from the Police, and (2.2) Favorable report from the Public Prosecutor’s Office.

The Supreme Court has been recommending that mere referrals should be avoided and that especially relevant indications should be extracted to justify the intervention of communications.

Subjective hypotheses or the mere conviction of the existence of a crime are not sufficient basis for motivation. It is not a matter of establishing the mere existence of a suspicion, but rather objective data whose content can be subsequently verified.

It is therefore desirable and advisable to have an autonomous and self-sufficient motivation that does not require “hetero-integration”.

However, it is well known that constitutional and ordinary jurisprudence considers motivation by referral to be sufficient: the resolution does not reiterate, because it is unnecessary, the reasons already set forth in the police request that it makes its own.

What qualities must the objective data required to adopt the resolution have?

This objective data must have two qualities.

(i) objective data accessible to third parties.

(ii) Data from which it can be inferred that a crime has been committed or that a crime is going to be committed.

As for the content, it must be such that “it may be assumed that someone intends to commit, is committing or has committed a serious infringement or on good grounds or strong presumptions that the infringements are about to be committed” (Judgments of the European Court of Human Rights of 6 September 1978, Klass case, and of 15 June 1992, Ludi case) or, in the terms expressed in the current art. 579 Criminal Prosecution Code, in “indications of obtaining by these means the discovery or verification of some important fact or circumstance of the cause” (art. 579.1 Criminal Prosecution Code) or “indications of criminal responsibility” (art. 579.3 Criminal Prosecution Code)” (STC 167/2002, of 18 September).

All of these criteria, described on the motivation of the judicial decision, must be interpreted, recognizing the experience in the assessment of evidence of the Judge who is investigating the case and who must carry out a judgment of the proportionality of the measure.

3) Agreed (the judicial resolution) by a competent Judge,

4) Resolved within the scope of the judicial procedure, in the sense that such proceedings must be agreed upon for specific actions carried out for the investigation of apparently criminal acts, with the exclusion of actions of a prospective and undetermined nature.

5) Specific Purpose: To justify the exceptionality, temporality and proportionality. Exceptionality requires that it should only be adopted when there is no other means of investigating the crime, which is of lesser impact on the fundamental rights and freedoms of the individual. As for proportionality, it should only be adopted in the case of serious crimes where the circumstances involved and the importance of the social significance of the criminal act make it advisable to adopt it, so that the derogation in the specific case of the principle of guarantee is proportionate to the legitimate objective pursued.

Finally, temporality. The Law of Criminal Prosecution authorizes (Article 579.3.º) individual quarterly periods, but the intervention cannot be extended indefinitely or excessively because this would make it disproportionate and illegal.

and 6) It must be revisable and controllable in its practice and development by a Judge.

Minimum content of the resolution agreeing to the intervention of the secrecy of communications.

They constitute material conditions that enable the intervention of the secrecy of communications:

1) The objective data that may be considered evidence of the possible commission of a serious criminal act

2º) the indications of the connection of the people affected by the intervention with the facts under investigation. Indications that are more than mere suspicions, but also something less than the rational indications required for prosecution.

Therefore, it cannot be a merely prospective investigation. The mere statement that there is a previous investigation, without specifying what it consists of, or what the provisional result has been, is totally insufficient.

3º) It is necessary to indicate the crime being investigated.

4º) The telephones to be tapped.

5ª) the persons to be investigated.

6ª) The time frame of the intervention.

7ª) periods of accountability to the judge who authorizes.

Is it considered illegal to obtain the identification data of the phones?

The fact that it is not possible to give a judicial authorization to tap a cell phone in the prepaid mode does not imply any illegality.

There are many legal ways to obtain them (going to collaborators, infiltrated agents or collecting information from a particular person when investigations are being carried out and follow-ups are options that allow the identification of these mobile phones).

In the same way that it is not possible to presume the legality of telephone tapping, neither is it possible to presume illegality. The presumption of innocence also affects the actions of the police. The numbers that identify the telephone terminals cannot be protected by the right to secrecy of communications.

The violation of the right to privacy by obtaining ownership and the number of the mobile telephone would be a minor interference with privacy “which, according to our constitutional canon, could be considered proportionate by constituting a suitable means to a legitimate end”.

When is it considered that there is sufficient evidence to allow the intervention for the right to secrecy of communications?

(i) The judge must verify the presence of evidence verifiable by a third party.

(ii) Statements of suspicion by the police are not sufficient.

(iii) The judicial organ must assess the seriousness and nature of the crimes to be investigated. The judge must also assess the necessity of such interference for the success of the investigation.

(iv) But not only that. It is also essential that the judge make an independent judgment on the level of evidence supporting the suspicions.

(v) It is necessary that these provide the instructor with the objective elements that support his judgment of probability. The verification of the soundness of these indications is an essential part of the assessment process. The Instructing Judge must weigh the degree of probability that can be derived from the evidence. Only when the latter moves beyond the mere possibility will interference be justified. A police intuition is not enough. Nor is a more or less vague suspicion sufficient. Nor are the orphaned confidences of other supporters valid. Something else is needed.

(vi) The subsequent success of the investigation, does not validate what it was rotten at birth: it is necessary to be at a previous judgment.

(vii) However, a thorough investigation is not necessary.

(viii) Neither is it necessary to previously verify the data provided by the police.

(ix) There is no reason to systematically doubt the “objectifiable” data offered by the police (the result of a surveillance, the confidentiality made by an informant…).

(x) This is compatible with the fact that police deductions should not be uncritically assumed either. It is the judge, handling these objectifiable data, who is called upon to make his own deductions, which may or may not coincide with those of the police.

(xi) A wiretap based on a testimony that appears to be credible will be valid and legitimate.

(xii) Even if it is finally proven that the witness was not telling the truth.

(xiii) The ex post verification does not retroactively invalidate the wiretapping (which is valid in order not to disqualify the evidence of economic and patrimonial capacity due to the fact that it has been determined a posteriori that there were other real owners, in an argument that can be extrapolated to the entry and house searches).

(xiv) The phrase “judicial authorization” is certainly not the most appropriate. The term “judicial resolution” is more appropriate.

(xv) This is not simply a assent.

(xvi) It is not a formal requisite, like a visa stamped at a customs office.

(xvii) It is something more substantial, with its own content.

(xviii) It is not simply a check on the viability of a police request.

(xix) It is the Instructor who carries out the interference, the person responsible for the investigation, who has to direct it, without prejudice to the fact that for this purpose he has to be assisted by the judicial police, who is not only valuable but essential in those cases

(xx) He should not assume the role of the latter, taking into account that the instructor is not a mere “observer” or  an “arbitrator” who “allows doing” and only interrupts when he detects an infraction or irregularity.

(xxi) The judge cannot abdicate from the task entrusted to him by the Constitution.

(xxii) Nor can he abdicate the legally assigned task of investigating crimes. The decision ordering interference with fundamental rights is a judicial one.

To what extent can the combination of telephone operators or international telephone operators lead to a violation of the right to secrecy of communications?

The technical formulas or the determination of which operators must be concerned in order to comply with such a court order is irrelevant. It lacks the significance intended by some of the appellants. The report on pages 2,534 to 2,543 prepared by SITEL’s Service Department is sufficiently expressive. It is not enough to generically challenge a report to strip it of all value. It is an official report. Whoever sent it gave an account of its origin.

The incidents that arise when using the Roaming service are exposed in it, which gives a perfect explanation of the variation of the numbers: they are virtual digits assigned by the operator with random numbers. This fully justifies the abnormalities that were thought to be discovered by the divergence of numbers. It’s not that they have listened to uninterrupted phones; it’s that being linked by the Roaming service necessarily produces that incidence that at first may be misleading.

What would be absolutely implausible, as it is contrary to the most elementary logic, is to think that phones were listened to that were different from those whose intervention had been authorized and that, coincidentally (!) they were used by the same people investigated; or, in an even more amazing display of coincidences, that they were other lines belonging to third parties whose conversations, however, were perfectly suited to the activity of those investigated here. And not only that: they were also in contact with other people under investigation (and as the sentence also argues, these are mostly dialogues in which both the calling and the called parties are intervened)

Behind the clarity of that report – it is indifferent that it refers to a single number: its conclusions can be extrapolated perfectly – other speculations are absurd. It is reiterative to give more thought to this question by insinuating all outlandish hypotheses.

6.- Judicial control of interventions.

Judicial control cannot be equated with hearing and transcribing all recordings prior to each extension or with timely knowledge of absolutely all conversations or immediate receipt of the original tapes.

Judicial control does not mean the transcription of the tapes in a court of law.

For such control there  is not need for the police to send the complete transcripts and original tapes and that the judge hears them agreeing on extensions or new interventions, but rather  it is sufficient to know the results obtained through the transcripts of the most relevant conversations and the police reports.

In order to agree on the extension of a wiretap, it is not necessary to hear those already carried out.

The instructor must have been able to evaluate the results of the practices carried out up to that moment through the police report, the vicissitudes of the essential data and not each and every one of the details. The reports of those who are physically conducting the wiretapping and the presentation of the most relevant conversations are sufficient for this purpose. The instructor’s right to demand explanations, clarifications or details is always safeguarded (see SSTC 82/2002 of 22 April or 205/2.05 of 13 July).

Nor does the reasoning for the referral of the extension orders imply a waiver of this necessary control. It is absurd to reiterate. The extensions are agreed on telephones that have already been reasonably tapped and in the light of police reports that give an account of the progress of the investigation and confirm the suspicions, or at least do not dispel them. It is logical that only significant conversations are reported in these reports. What is relevant is that some of them are not hidden, even if only the decisive ones are highlighted in the reports and not the inconsequential ones.

Specific regulation in Spain on this matter

The European Court of Human Rights has required countries to have specific regulations on this matter. Spain’s delay in approving a specific regulation has caused the Jurisprudence to make up for this omission. Finally, this matter has been regulated in a norm Organic Law 13/2015, of October 5, on the modification of the Law on Criminal Procedure for the strengthening of procedural guarantees and the regulation of technological research measures is the result of that regulation.

Below is a brief summary of the index of how it has been regulated:

Of the detention and opening of written and telegraphic correspondence

Article 579. Written or telegraphic correspondence.

Article 579 bis. Use of information obtained in a different procedure and casual discoveries.

Provisions common to the interception of telephone and telematic communications, the capture and recording of oral communications through the use of electronic devices, the use of technical devices for tracking, locating, and capturing images, the recording of mass information storage devices, and remote records on computer equipment

Article 588 bis a. Guiding principles.

Article 588 bis b. Application for judicial authorization.

Article 588 bis c. Judicial resolution.

Article 588 bis d. Secrecy.

Article 588 bis e. Duration.

Article 588 bis f. Request for extension.

Article 588 bis g. Control of the measure.

Article 588 bis h. Affectation of third parties.

Article 588 bis i. Use of information obtained in a different procedure and casual discoveries.

Article 588 bis j. Cessation of the measure.

Article 588 bis k. Destruction of records.

The interception of telephone and telematic communications

Article 588b a. Budgets.

Article 588b b. Scope.

Article 588b c. Assignment to third parties.

Article 588b d. Application for judicial authorization.

Article 588b e. Duty of collaboration.

Article 588b f. Control of the measure.

Article 588 ter g. Duration.

Article 588b h. Request for extension.

Article 588b i. Access of the parties to the recordings.

Incorporation of electronic traffic or associated data into the process

Article 588b j. Data held in automated files of service providers.

Access to data necessary for the identification of users, terminals and connectivity devices

Article 588b k. Identification by IP number.

Article 588b l. Identification of the terminals by capturing identification codes of the device or its components.

Article 588b m. Identification of holders or terminals or connectivity devices.

Capture and recording of oral communications through the use of electronic devices

Article 588 quater a. Recording of direct oral communications.

Article 588 quater b. Budgets.

Article 588 quater c. Content of the judicial resolution.

Article 588 quater d. Control of the measure.

Article 588 quater e. Cessation.

Use of technical devices for image capture, tracking and tracing

Article 588 quinquies a. Capturing images in public places or spaces.

Article 588d b. Use of devices or technical means for tracking and tracing.

Article 588d c. Duration of the measure.

Registration of devices for mass storage of information

Article 588 sexies a. Need for individualized motivation

Article 588 sexies b. Access to information on electronic devices seized outside the home of the investigated.

Article 588 sexies c. Judicial authorization.

Remote records on computer equipment

Article 588 septies a. Budgets.

Article 588 septies b. Duty of collaboration.

Article 588 septies c. Duration.

Assurance measures

Article 588 octies. Data conservation order.