Call data recovery

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The Rufdatenrückerfassung referred in Austria retrospective evaluation of call data without the consent of the participant .

According to Section 99, Paragraph 1, Clause 1 of the Telecommunications Act 2003 (TKG 2003), traffic data may be saved by the provider for the purposes of offsetting end customer or wholesale charges, but must be deleted or anonymized as soon as the payment process has been carried out and within a period of three months the fees were not contested in writing.

A disclosure of this already existing and lawfully stored data by the provider and their subsequent evaluation by the law enforcement authorities is permitted due to certain special legal authorizations, to which Section 99 (1) sentence 2 TKG 2003 refers. These are the Code of Criminal Procedure StPO (§§ 99 Paragraph 5 Z 1 and 2 as well as § 102a ff. TKG 2003 in conjunction with §§ 76a ​​and 134 ff. StPO) and the Security Police Act (SPG) in conjunction with the Police State Protection Act PStSG (§ 99 Para 5 nos. 3 and 4 TKG 2003 in conjunction with § 53 para. 3a and 3b SPG; § 11 para. 1 no. 5 PStSG).

The regulations on unjustified data retention were repealed with the decision of the Constitutional Court announced on June 27, 2014 , which came into force on July 1, 2014, due to their unconstitutionality.

Code of Criminal Procedure

Section 76a of the Code of Criminal Procedure regulates information on master and access data at the request of criminal police authorities , public prosecutors and courts for the purpose of administrative and legal assistance.

Information about data in the context of an investigation is regulated by Section 135 (2) StPO. According to the legal definition in § 134 Z 2 StPO, the data collection extends to traffic, access and location data. Traffic data is data that is processed for the purpose of forwarding a message to a communication network or for the purpose of billing this process; Access data are those traffic data that arise when a subscriber accesses a public communication network at the operator's premises and are necessary for the assignment of the network addressing used for communication at a specific point in time to the subscriber; Location data are data that are processed in a communication network or by a communication service and that indicate the geographical location of the telecommunication terminal of a user of a public communication service; in the case of fixed telecommunication terminal equipment, location data is the address of the facility (Section 92 (3) no. 6 TKG 2003). The information is to be ordered by the public prosecutor's office on the basis of a court approval (Section 137 (1) sentence 3 StPO). Operators of postal and telegraph services are obliged to provide information immediately.

Call data retrieval is particularly permissible to investigate kidnapping, to investigate any other criminal offense that is threatened with imprisonment of more than a year, and to determine the whereabouts of a fugitive or absent suspect (Section 135 (2) StPO).

The data subject can see the result of the data collection retrospectively. The collected data may only be used as evidence if their collection was permissible (§§ 139, 140 StPO).

Security Police Act and Police State Protection Act

While the investigation and prosecution of criminal offenses is based on the Code of Criminal Procedure, the prevention of criminal offenses in order to avert danger is assessed according to the Security Police Act (SPG).

According to Section 53 (3a) and (3b) SPG, the security authorities are entitled to request certain call data not only from operators of public telecommunications services, but also from other service providers under the E-Commerce Act (ECG) such as online retailers, if this data is essential A prerequisite for averting a specific danger to the life, health or freedom of a person in the context of the first general duty to provide assistance, a dangerous attack or a criminal connection within the meaning of § 16 SPG are necessary. This data also includes the Internet protocol address ( IP address ) and the international mobile subscriber identification ( IMSI ).

Regarding § 53 SPG, the Constitutional Court ruled in 2009 that such a request for information may only relate to data that is permissibly (still) stored by the telecommunications operator. The Security Police Act does not create a basis for any additional storage of cell phone and Internet data. If a so-called IMSI catcher is used, the determination is limited to the location of the cell phone user.

§ 11 para. 1 5 Police State Protection Act (PStSG) points for the police state protection of the powers according to § 53 SPG for extended threat research and for preventive protection against constitutional harmful attacks, if the performance of the task would be futile by use of other measures of investigation. The Constitutional Court considers this regulation to be constitutional.

Individual evidence

  1. ↑ Federal law that enacts a telecommunications law (Telekommunikationsgesetz 2003 - TKG 2003) RIS , accessed on August 5, 2018
  2. ↑ Verena Weiss, Lisa Pühringer: data on reserve public safety 7–8 / 11, p. 84 f.
  3. ↑ Constitutional Court (VfGH), decision of June 27, 2014 - G47 / 2012 et al
  4. ↑ Data retention website of the Federal Ministry for Digitization and Business Location , glossary of terms, as of July 25, 2018
  5. ↑ Information on data from the transmission of messages and monitoring of messages Website of the Federal Ministry for Digitization and Business Location , as of July 11, 2018
  6. ↑ Christoph Tschohl et al .: HEAT - Handbook for the Evaluation of Anti-Terror Laws in Austria 1.2 epicenter.works - Platform for Fundamental Rights Policy, Version 1.2, August 30, 2017, p. 152 ff.
  7. ↑ Federal Act on the Organization of Security Administration and the Exercise of the Security Police (Security Police Act - SPG) RIS , accessed on August 8, 2018
  8. ^ Federal law regulating certain legal aspects of electronic business and legal transactions (E-Commerce Law - ECG) RIS , accessed on August 8, 2018
  9. ^ Press release of the Constitutional Court of July 15, 2009
  10. ↑ Federal Act on the Organization, Tasks and Powers of Police State Protection (Police State Protection Act - PStSG) RIS , accessed on August 8, 2018
  11. ↑ VfGH, decision of November 29, 2017 - G 223 / 2016-23 p. 91, 6.5.2.13.