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December 7, 2021

CCR motivation: Cyber security law violates private life, secrecy of correspondence

The Law on cyber security violates the constitutional provisions regarding the rule of law and the principle of legality, as well as the ones regarding the intimate, family and private life, the secrecy of correspondence, respectively, says the Constitutional Court of Romania (CCR).

The motivation invoked by the CCR is the fact that the national authority in cyber security should be a civil body, so as to guarantee these rights, and not the National Centre of Cyber Security (CNSC), which already functions within the Romanian Intelligence Service (SRI) with military staff.

The CCR has released on Tuesday the reasons why it has declared on January 21, as unconstitutional the Law on cyber security.

The Constitutional Court has yet to check whether the regulation of the field is matching the observance to the intimate, family and private life, the inviolability of the secrecy of correspondence, the right to the personal data protection, all fundamental values which should represent main principles of the national security policy, and make sure the legislation endorsed does not lead to such measures which could be unconstitutional interference with the above-mentioned rights.

‘Therefore, the Court appreciates that in order to ensure a climate of order, governed by the principles of a democratic, rule of law, the fathering or identification of a body in charge with the coordination of the security matters of the cyber systems and networks, as well as of the information capable to be the contact point for the connection with the similar bodies from abroad (as foreseen in art. 10 para (4) of the law), of the trans-border cooperation at the European Union’s level, included, should target a civil body to fully operate on the grounds of the democratic control, and not an authority which develops activities in the intelligence, of enforcing the law or of defence, or which represents a structure of a body activating in these fields,’ the constitutional judges say in their motivation.

In the CCR opinion, the option for designating a civil body as national authority in cyber security, and not a military entity activating in intelligence field, is justified ‘through the necessity to prevent the risk to diverting the aim of the cyber security Law with respect to use the attributions given under this law by the intelligence services to get information and data with the consequence of violating the constitutional rights to an intimate, family and private life, and the secrecy of correspondence.


‘Or, this is exactly what the law subdued to the constitutionality control does not avoid, by designating the SRI and its CNSC militarized structure. So, by examining the attributions set by the normative act subdued to control, it appears obvious the intent of the lawmaker to set in the CNSC competence to collect all data on the state of security of the infrastructure, regardless of their nature, both in the public and in the private milieu. Or, considering that the CNSC is a military structure within an intelligence service, subordinated to the leadership of this service, which is under direct military and administrative control, it appears evidently that such an entity does not meet the conditions regarding the guarantees necessary to observing the fundamental rights referring to the intimate, family and private life, and the secrecy of correspondence,’ the CCR motivation says.


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