Version in Serbian only.


Rodoljub Sabic*

In recent months, in dozens of major cities in the USA, including New York, Washington, San Francisco and Los Angeles, rallies have been organized by citizens disgruntled in the knowledge that the authorities are reading their e-mails and SMSes and tapping their phones without limitations and control. The protesters think that the scary vision of the totalitarian world of Orwell's 1984 is on its way to be materialized, and they are saying to the government ''No 1984'' , ''Read Constitution, not my e-mail", ''Restore the 4th Amendment".

Perhaps it is worth recalling, for the sake of those less informed, that the 4th Amendment to the U.S. Constitution, one of the first ten ,,great amendments'' which constitute the Bill of Rights, which has had a strong influence on the development and human rights guarantees at the international level, protects against unreasonable searches and seizures. It was written in archaic language more than two centuries ago, however in modern times its guarantees should have to cover electronic communications as well.

As is well known, the disgruntlement aroze after the ex-CIA agent Edward Snowden revealed the secret programmes of CIA and NSA to the public, i.e. the brutal truth that millions of Americans including the millions of people around the world are being spied upon by intercepting and monitoring of e-mails, SMSes and mobile phone calls.

This is an ''American'' issue, before all, however it has obviously opened up a whole range of issues in international relations. It all boils down to one thing – whether, or rather: to what extent, do the authorities of other countries take this approach to the ''guaranteed'' human rights?

This makes the message ''Read Constitution, not my e-mail'' universally relevant.

Our Constitution guarantees a high level of confidentiality of letters and other means of communication. Confidentiality shall be ''inviolable'' and derogations shall be allowed only ''based on decision of the court if necessary to conduct criminal proceedings or to protect the safety of the Republic of Serbia".

Do the citizens believe in exercising of these guarantees?

The problem is precisely that they can only ''believe'' or ''not believe'', and a society that wants to be democratic does not need belief but certainty. We do not have mechanisms to guarantee deviations from the confidentiality of citizens' communications only due to reasons and in a manner provided for by the Constitution. This is precisely why, more than a year ago, the Ombudsman and the Commissioner for Information of Public Importance and Personal Data Protection proposed to the authorities a ''package'' of 14 measures which implementation we consider the minimum prerequisite for the establishment of such a mechanism. The ''package'' received strong verbal political support. Concrete support is still pending.

Legal provisions that enabled security structures to have access to ''retained data'' without a court decision were applied for years. In the proceedings instituted at the request of the Ombudsman and the Commissioner, the Constitutional Court proclaimed as unconstitutional provisions of the Law on Military Security Agency and Military Intelligence Agency and the Law on Electronic Communications, however ''relevant'' provisions of the Law on Criminal Proceedings are still in force .

Quantitative data on the use of ''facilitated'' access to data by security structures are not reassuring. Surveillance conducted at the order of the Commissioner has indicated that such a database of only one provider has been accessed in over 270,000 instances within just one year. Such a large number simply begs the question – Is it possible that in all those instances there were justified and legitimate and legal reasons for access.

In general, there is ''no use'' in discussing the legitimacy of reasons that almost all security structures in the world use to ''justify'' their growing appetites for data on communications or data contained in the communications of citizens. Fight against organized crime, Fight against terrorism, Protecting the country's security, are strikingly legitimate. It is just that, legitimacy goes hand in hand with another requirement – legality

Efforts to provide security structures the best conditions to achieve legitimate aims must have limits. There must be no doubt that these limits are guarantees of human rights and freedoms stipulated in the Constitution.

Guarantees of the freedoms must not be brought into question. It is worth to quote an American, Benjamin Franklin: ''He who gives up freedom for safety deserves neither." And risks losing both.