Διαδικασία άρσης του απορρήτου των επικοινωνιών : κριτική αποτίμηση του εθνικού κανονιστικού πλαισίου
The procedure for lifting the confidentiality of communications : a critical assessment of the national regulatory framework
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Keywords
Άρση απορρήτου ; Άρση του απορρήτου των επικοινωνιών ; Αποθηκευμένες επικοινωνίες ; Απόρρητο επικοινωνιών ; Δεδομένα επικοινωνίας ; Δεδομένα κίνησης και θέσης ; Διατήρηση δεδομένων ; Εξωτερικά στοιχεία επικοινωνίας ; Επιφυείς υπηρεσίες ; Ιδιωτικός βίος ; Ιδιωτικότητα ; Κρατικό hacking ; Κυβερνοασφάλεια ; Λογισμικά παρακολούθησης ; Μεταδεδομένα ; Ν. 5002/2022 ; Παρακολούθηση επικοινωνιών ; Συνταγματικό δικαίωμα ; ΤηλεπικοινωνίεςAbstract
The lifting of the confidentiality of communications is one of the most pressing issues in the legal sector. It concerns the point at which an absolutely inviolable right may be restricted. Through this measure many crimes are solved or even prevented hence the strong interest of law-enforcement authorities. Exercised prudently, it is indeed a very effective and useful tool, but is it properly regulated within the Greek legal order? The central issue of the present study is when and how the lifting of the confidentiality of communications is permitted in the Greek legal order. The study reaches this topic by first analysing how the notion of privacy emerged. Once this notion is framed, the three levels of privacy are identified, followed by how they are legally enshrined. Legal protection is achieved by distinguishing the three dimensions of privacy (private life, personal data, and the confidentiality of communications). These three legal aspects of privacy are examined, with particular emphasis on the theoretical foundation of communications secrecy. The study presents how the protection of confidentiality of communications is institutionalised at national, European, and international level, giving the greatest attention to Article 19 of the Constitution. After naming the ways in which the right to communications secrecy may be limited, the study briefly analyses, for coherence and comparison, the previous law governing how the lifting is achieved. A distinction is drawn mirroring the statute between cases where confidentiality is lifted for national security reasons and those concerning the investigation of particularly serious crimes. Owing to the fragmented nature of the law, an effort is made to include everything in an organised manner by category, while the procedures relating to both cases of lifting are organised in a separate subchapter. Immediately afterwards, following each procedural analysis, the issues that emerged are set out briefly. With the same structure and rationale, though in far greater detail, the discussion moves to the present statute that dictates when the confidentiality of communications may be lifted. Where necessary, procedural analysis is accompanied by comparison with the previous law. As the shortcomings of the new statute are identified and explored, it becomes increasingly clear that many problems of the old law remain unresolved, while new ones have emerged. The final chapter addresses issues that lie beyond Greek Law 5002/2022, treating access to communications data more holistically together with the issues that arise. It examines how access is obtained to stored communications data as well as to data generated through modern means of communication. The cross-border dimension of the issue is analysed, as well as how end-to-end encryption affects law enforcement authorities and the right itself. The study concludes with a recap of the main issues and argues that, although many problems persist, only institutional maturity, transparency, and active social dialogue can ensure that the confidentiality of communications is not a conditional right, but a non-negotiable guarantee of the rule of law.