Erkki Koort ⟩ Estonia is looking for a balance regarding the use of people's communication data

Sitting for the deliberation of the early release of baseball bat murderer Vjatšeslav Bajuk. Without the use of communication data, he would likely have never been caught and convicted. Photo: Konstantin Sednev Photo: Konstantin Sednev

• The ban on the use of communication data slows down the investigation of crimes.
• Data can be used if it has been collected.
• To maintain the current level, 50-100 additional police officers would have to be hired.

A debate on whether the state monitors its people too much and whether the collection of communication data makes everyone a potential criminal has been reignited. The situation needs to be resolved throughout Europe, but a setback in the fight against crime is likely, writes Erkki Koort, security expert at Postimees and the Estonian Academy of Security Sciences.

Member states of the European Union agreed to centrally regulate the collection of communication data, which previously varied across member states. Member states could choose the period during which the data had to be stored. The logic was very simple – if data is not collected, it is much more difficult or too late to collect it when a crime has been committed. However, this kind of data is very far from the blanket surveillance that is often highlighted. Moreover, communication companies collect most (and sometimes more) data based on their business activities.

Malicious misleading

The first piece of misinformation that is consistently being broadcast is that we are seemingly dealing with confidentiality of messages. Communication data includes which numbers were in contact with each other, how long the call lasted, and which mast area they were in. Creating the impression that this information includes the content of the calls is maliciously misleading the public.

Society is heading towards greater adoption of technology, but we are headed in a different direction in the fight against crime.

Another widespread piece of misinformation is that the state can do as it sees fit with this data seemingly without limits. This is not the case. While 20 years ago a letter from the department head was enough to access the data, today a judge's permission is required. Accessing communication data is tantamount to starting wiretapping. Stories as if it were a gold mine, where valuable information is searched for at will, are not true.

In 2014, the European Court of Justice ruled that imposing an obligation on communication companies to collect communication data is disproportionate and their use should be more limited. The collection of communication data was agreed upon jointly in Europe and functioned with minor differences in all EU countries. It was supposed to stop the collection of communications data. This statement is also misleading and untrue. The collection of communication data and similar use was to end in criminal proceedings, but the collection of this data to ensure the security of the state is not prohibited.

In the 2014 decision of the European Court of Justice, the court recommended at that time to stipulate specific persons, sections of law or regions for which the collection of information may continue. In reality, this is very stigmatizing. How to stipulate regions? Do we base this on high crime areas? Are all the people who live there more potential criminals than people who live in another county? At the same time that this decision was made, the underworld leader Nikolai Tarankov was killed in Estonia. He was mainly active in Tallinn, but he was killed in Lääne County, one of the areas with the least crime. Communication data was also used to solve his murder.

Funeral of underworld leader Nikolai Tarankov. According to the idea of the 2014 ruling of the European Court of Justice, data could likely have been collected about all the people in the photo. But could it be done indefinitely? Photo: Photo: Mihkel Maripuu / Tairo Lutter

The stipulation of areas is even less of a concern compared to the second recommendation of the European Court of Justice to specify specific individuals whose communication data should be collected. If a person has committed a drug crime, must their communication data be collected indefinitely? How do they escape it? Or should it apply to all persons convicted at some point? This is a much greater potential suspicion, as a result of which we can forget about both resocialization and, likely, restorative justice.

While it is possible to identify so-called potential criminals through prior convictions, communication data is also used to protect the rights of victims. However, it is much more difficult to define who will be the next victim. This aspect has been completely excluded from the discussion.

Do we hire officials?

Society is heading towards greater adoption of technology, but we are headed in a different direction in the fight against crime. Things that could be done by a machine will have to be done by a person in the future. Put simply, to maintain the current level of crime fighting, 50-100 more officers would need to be hired to do by hand the work that used to be done with data analysis. This is not conceivable under the conditions of cuts, so the procedure times will be extended even further, in response to which the prosecutor's office will issue the next guideline for non-priority crimes.

The logic was very simple – if data is not collected, it is much more difficult or too late to collect it when a crime has been committed.

The use of communication data in solving petty thefts has been much ridiculed. Well, if we are rich enough to investigate petty theft in a more expensive way, then of course. Or should this theft not have been investigated at all? It is clear that there will be no investigation now, because the costs of solving it are obviously unreasonable.

What else will the current situation bring? There will likely be more wiretapping next year because the less privacy-intrusive method is banned. Thus, the infringement of fundamental rights will be greater.

The new European Commission is about to take office and hopefully it will take the task more seriously than the previous ones and start looking for a solution.

The prosecutor's office has announced that it has not been asking for communication data on the basis of a section of the law established as a state obligation for three years already, but requests data that the company has for its business purposes.