Bulgaria

PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

LAW ON ELECTRONIC COMMUNICATIONS 2007 (the “LEC”)

Article 304 states that undertakings which provide public electronic communications networks and/or services must ensure that they are set up in a way which allows for interception of electronic communications in real time and real time access to data related to a specific call. Where this data cannot be provided in real time, the data should be provided to the State Agency for Technical Operations and to the State Agency for National Security as soon as possible after the termination of the call. The interception procedure should be carried out in accordance with the Law on Special Intelligence Means.

Subject to Article 305, the undertakings which provide public electronic communications networks and/or services provide, commission and maintain, at their own expense, one or several interception interfaces by which intercepted electronic communications can be transmitted to the facilities of the State Agency for Technical Operations and of the State Agency for National Security. In addition, they must ensure that they are set up in a way which allows for transmission of intercepted electronic services to these facilities over fixed or switched lines. The technical parameters, configuration and conditions for maintenance of the interception interfaces should be coordinated with the State Agency for Technical Operations and approved by its Chairman.

Interception must be conducted in a way which excludes the possibility of illegal interference in, and ensures protection of, the information related to the interception. Intercepted electronic communications are received only by the State Agency for Technical Operations and by the State Agency for National Security in compliance with the Law on Special Intelligence Means (Art. 309).

GENERAL REQUIREMENTS FOR PROVISION OF PUBLIC ELECTRONIC COMMUNICATIONS (THE “REQUIREMENTS”) (issued in 2008)

The Requirements were issued by the Commission for Communications Regulation on the grounds of Article 73 LEC. In accordance with Article 19 of the Requirements, the undertakings that provide public electronic communications networks and/or services are obliged to cooperate for the safeguarding of public interests, defending national security and ensuring electronic communications for defence needs and in national emergencies (crises).

In pursuance of this obligation and depending on the network used or services provided by a particular undertaking, it is obliged to set conditions, at its own expense, for interception of electronic communications by providing interfaces for the needs of the national security and public order. For the purposes of complying with these obligations, undertakings cooperate with competent state authorities, such as the State Agency for National Security, and implement the relevant interfaces that transmit electronic communications to these agencies.

LAW ON SPECIAL INTELLIGENCE MEANS 1997 (the “LSIM”)

The LSIM sets out the terms and conditions, procedures for use and application and the control related to the use of special intelligence means (which includes interception and other ancillary covert activities) and the results obtained via these means. Under the LSIM, special intelligence means are used to prevent or detect intentional grave crimes, as listed in Article 3 (such as spying, sabotage, terrorism, murder, computer crimes, theft, etc.), where the relevant circumstances cannot be established in any other way or would be disproportionately difficult to establish by any other means.

The following government authorities have the right to request the use of special intelligence means and to use the data collected and the material pieces of evidence retained: the National Police Directorate General, Organized Crime Fighting Directorate General, Border Police Directorate General, Internal Security Directorate General, the specialized directorates (with the exception of Technical Operations Directorate) and the territorial directorates of the State Agency for National Security, and the regional directorates of the Ministry of Interior, Military Information and Military Police services with the Minister of Defence and the National Intelligence Service. For some specified crimes, requests can also be made by prosecutors from the relevant Regional Prosecutor’s Offices. In case of use of special intelligence means for preventing of terrorism, the request can be made by the Chief Prosecutor of the State, the Chairman of State Agency National Security, the Chairman of National Intelligence Service, the Director of Military Information Service or deputies authorised by them as well as by the Chief Secretary of the Ministry of Interior (Article 13).

Interception under the LSIM can only be undertaken where there is a grounded written request from the heads of the respective authorities, the aforementioned officials or by a supervising prosecutor. The requests should contain certain statutory requisites (such as facts substantiating the view that a grave crime has been committed, the proposed time period for the use of interception, and activities undertaken so far within the investigation). The request should be submitted to the Chairman of the Sofia City Court, of the respective district or military court or of the specialized criminal court or to a deputy empowered by that Chairman who will authorize or refuse the use of special intelligence means (Article 14 and Article 15). In addition and unless there are exceptional circumstances, once the use of special intelligence means has been authorised by the relevant court, the chairman of the State Agency for Technical Operations issues a written order for enforcing the relevant special intelligence means.

Interception may only be conducted by the relevant departments of the State Agency for Technical Operations or the Technical Operations Directorate of the State Agency for National Security, in accordance with the LSIM. However, in a limited number of cases, interception may be conducted by the National Intelligence Service and by the intelligence services of the Ministry of Defence – in the sphere of their competence and by the Ministry of Interior – where an undercover officer of the Ministry participates in a relevant investigation of crimes where the use of special intelligence means is permitted (Article 20).

PENAL PROCEDURE CODE 2006 (the “Code”)

Pursuant to Article 172(3) of the Bulgarian Penal Procedure Code, computer information service providers (a term which encompasses communication service providers) are under an obligation to provide assistance to the court and pre-trial authorities in the collection and recording of computerized data through the use of special intelligence means (including interception). The use of special intelligence means is limited to the purposes of investigating intentional grave crimes (those for which the law provides punishment by imprisonment for more than five years, life imprisonment, or life imprisonment without substitution, such as spying, sabotage and murder), where the relevant circumstances cannot be established in any other way or would be disproportionately difficult to establish by any other means. Interceptions under the Code are conducted pursuant to the LSIM.

Under the Code, where interception is required in a pre-trial investigation, a grounded written request for the use of special intelligence means is made by the supervising prosecutor to the court. The administrative head of the relevant Prosecutor Office making the request is also notified. The request should contain the following information listed in Article 173:

(i)information about the crime, the investigation of which requires use of special intelligence means;

(ii) a description of the activities conducted within the investigation so far and the results thereof (so that the judge can assess if interception is the only remaining method available to collect data and evidence);

(iii)information relating to the individuals that will be the subject of the interception;

(iv)information on the operational investigative methods (that the request is for interception);

(v)the time period for use of interception (this is as a rule two months, but can be extended to six months); and

(vi)the reasons why this method must be employed, and why the information required cannot be acquired in any other way, or that there would be extreme difficulties related to acquiring it in another way.

Authorization of the request is given by a ruling of the Chairman (or explicitly authorized deputy Chairman) of the respective court. On the grounds of the authorization, the Head of the State Agency for Technical Operations (or an authorized deputy head), or the Head of the State Agency for National Security (or an authorized deputy head) or the Chief Secretary of the Ministry of Interior, may issue a written order for the interception to take place in compliance with LSIM. 1.5 Law on the Ministry of Interior 2014 (the “LMI”) The LMI provides that, in executing its powers related to defence of citizens’ rights and freedom, prevention and investigation of crimes, defence of national security, safeguarding the public order, etc. the investigative bodies of the Ministry of Interior are authorized to use different methods. If it refers to special intelligence means, such activities should be performed under the rules of LSIM.

LAW ON THE STATE AGENCY FOR NATIONAL SECURITY 2008 (the “LSANS”)

The LSANS sets out the statutory basis that, in carrying out their various investigative activities, the structures of the State Agency for National Security are authorized to use special intelligence means (including interception) in accordance with the LSIM (Article 123). Furthermore, they are authorized to require other state authorities, legal entities (such as companies) and individuals to provide the information necessary to carry out their obligations and such entities and persons are required to immediately provide any information that has been obtained or acquired in relation to a request made in pursuance of the powers of the State Agency for National Security (Article129). There is no definition of “immediately”.

DISCLOSURE OF COMMUNICATIONS DATA

LAW ON ELECTRONIC COMMUNICATIONS 2007 (the “LEC”)

Undertakings providing electronic communications networks and/or services have statutory obligations to keep safe the confidentiality of communications. However, due to the prevailing public interest, the LEC provides for three specific types of disclosure of communications data: (a) interception under the procedures of LSIM as this includes the provision of communications data related to the intercepted communication; (b) provision of information under Article 310 of the LEC (which would be requested prior to carrying out the interception); (c) disclosure of particular retained data. The specific cases under (b) and (c) are not related to disclosure of the content of communication.

The relevant details with respect to the interception obligation have been mentioned in Section 1.1 above.

Pursuant to Article 310 of the LEC, before implementation of lawful interception takes place, the State Agency for Technical Operations and the State Agency for National Security require the undertakings that provide public electronic communications networks and/or services to provide:

1)data to establish the identity of the subscriber, the number or another identifying feature of the electronic communications service;

2)information about the service and the characteristics of the electronic communications system used by the subject of interception and provided by the undertakings that provide public electronic communications networks and/or services; and

3)information about the technical parameters of the transmission to the facilities of the State Agency for Technical Operations.

In addition, the undertakings that provide public electronic communications networks and/or services must retain for a period of six months (which may be extended by a period of up to three months by permission of the court), certain data generated or processed in the course of their activities which can be used to trace and identify: the source of a communication; its destination, date, time and duration; the type of the communication; the communications terminal equipment of the user or what purports to be a communications terminal equipment of the user, and the Cell ID (Article 251b). Pursuant to Article 251b, paragraph 3, other data, including data disclosing the content of the communications, may not be retained in accordance with this data retention procedure.

Access to these data is limited to the needs of national security, the prevention, detection and investigation of grave crimes. Cell ID data can be used also for search and rescue of individuals under the Disaster Protection Act (upon receiving information that a person is, or may be, in risk threatening his/ her life or health) (Article 251b, paragraph 2).

The retained data may be accessed by the authorities listed in Art. 251c (such as certain directorates of the State Agency for National Security, the Ministry of Interior and the Ministry of Defence, as well as the National Intelligence Service) when such data is necessary for the performance of their duties.

Subject to LEC, the retained data is accessed after a grounded court order is given by the Chairman of the respective regional court (or a judge authorised by him). In the event of immediate danger from specific categories of crimes (terrorism, forgery with the intention to facilitate terrorism, etc.) the undertakings providing electronic communications have to provide access immediately and directly – based on the request of the head of the competent authority. The request is then notified to the competent court and if the court denies access to the retained data, the electronic communications provider shall be notified and the component authority has to destroy the data obtained so far.

Alternatively, for the purposes of criminal investigations and proceedings under the Penal Procedure Code, the data are provided to the pre-trial investigation authorities and the court in compliance with such Code.

PENAL PROCEDURE CODE 2006 (the “Code”)

Article 159a sets out the procedures for accessing the data retained under the LEC for criminal investigations and proceedings under the Code. Under the Code, access to the retained data (being the same as under LEC) is granted by the undertakings providing electronic communications networks and/or services either upon request of the court (when the relevant proceedings are in their court stage), or on the grounded order of a judge from the competent first instance court, issued under a substantiated request of the prosecutor supervising the pre-trial procedure (during the pre-trial stage). Such data may be accessed for the purpose of investigating intentional grave crimes.

NATIONAL SECURITY AND EMERGENCY POWERS

LAW ON ELECTRONIC COMMUNICATIONS 2007 (the “LEC”)

In accordance with Article 301 of the LEC, the undertakings that provide public electronic communications networks and/or services must ensure the capability for the provision of electronic communications in case of natural disasters as defined by the Disasters Protection Act, and in case of a declaration of a state of martial law, state of war or state of emergency in the meaning of the Law on Defence and Armed Forces of the Republic of Bulgaria. 

In order to safeguard national security, undertakings which provide electronic communications networks and/or services must ensure the competent authorities have access to the network and/or the services provided, as well as the ability to use electronic communications over the network free of charge in case of an imminent threat to national security. In addition, if there is an imminent threat to national security or in a limited number of specified scenarios (detecting, identifying and defusing explosive devices and explosive substances; freeing hostages; detecting and preventing the use of national radio spectrum against the state etc.), the competent authorities may block the use of electronic communications services by using technical means. The competent authorities in this case are the State Agency for National Security, certain bodies of the Ministry of Interior, the Military Police Service and National Security Office.

In accordance with Article 302 and Article 120, if a state of martial law or a state of war is declared or in case of danger to national security, the Commission for Regulation of Communications (following a decision/request of a competent authority) can temporarily suspend the validity of permits for radio spectrum frequencies. When such decisions are made the regulator is authorised to forbid the use electronic equipment or radio frequency spectrum for civil needs as long as this is needed.

Under Article 303, the undertakings which provide electronic communications networks and/or services and have assigned wartime tasks must use and maintain their electronic communications network in a state of readiness to provide of electronic communications in the event of natural disasters as defined by the Disasters Protection Act, or of a declaration of a state of martial law, war or emergency as defined by the Law on Defence and Armed Forces of the Republic of Bulgaria.

DISASTER PROTECTION ACT 2006

In accordance with Article 30, the undertakings which provide electronic communications have the obligation to assist the Ministry of Interior and the National Emergency Call System 112 to carry out communications during natural disasters. In addition, pursuant to the latest amendments of Art 38:

(a) upon the request of the operating centres of the integrated rescue system, the electronic communications providers must transmit free of charge, immediately and without altering the content and the meaning any urgent information, required to protect the population, in accordance with the established agreements;

(b) in case of receipt of information for an individual who is in, or may be in a position that poses risks to his/her life or health, the undertakings which provide public electronic communications networks and/or services have to provide Cell ID data retained in compliance in LEC within 2 hours after the request of the Chief Directorate “Fire Safety and Population Protection” within the Ministry of Interior.

LAW ON DEFENCE AND ARMED FORCES IN THE REPUBLIC OF BULGARIA 2009

When a state of war, state of martial law or a state of emergency has been declared, the state authorities and the armed forces may take control over the facilities of the critical statutory infrastructure. The critical statutory infrastructure and activities are defined and identified by Decree No 181 of the Council of Ministers, dated 20th of July 2009 for determining of the strategic objects and activities critical for national security, including amongst other things, mobile and fixed communications services. Three of the undertakings which provide such services (Mobiltel, Bulgarian Telecommunications Company and Telenor Bulgaria) are identified as part of the critical statutory infrastructure, meaning that the relevant state authorities and the armed forces may take control over their facilities (Article 123).

LAW ON THE MINISTRY OF INTERIOR 2014 (the “LMI”)

The police authorities may issue orders to state authorities, organizations, legal entities and natural persons where this is necessary for performance of their functions. As a general principle the orders are in writing, where possible and as long as they would be understandable by the persons to whom the order is directed. The orders have minimum content determined by the law and are subject to appeal (Article 64). Furthermore, in the process of detection, identification and deactivation of explosive devices and explosive substances, police authorities may block electronic communications by using technical means (Article 90).

COUNTER TERRORISM LAW 2016

In the framework of an anti-terrorist operation and on the request of the competent authority, the undertakings providing electronic communication services must temporarily restrict the use of electronic communications services by a particular user (Article 39).

Where under particular circumstances (terrorist act resulting in multiple deaths and injuries, substantial property damage or damage to the economy of the country, etc.) the National Assembly or the President have declared a state of emergency, the undertakings providing electronic communications networks and/or services must (i) ensure the provision of electronic communications, (ii) provide the competent authorities with access to the network and/or the services as well as free of charge use of electronic communications through the network and (iii) temporarily suspend the operation of the electronic communications networks if ordered so by the competent authorities. Further terms and conditions as well as the relevant procedures for ensuring electronic communications upon declaration of a state of emergency are yet to be set forth by the Council of Ministers on a proposal by the Minister of Transport, Information Technology and Communications in consultation with the relevant competent authorities.

CENSORSHIP

The right of expression, regardless of the media used, is a fundamental right set out in the Bulgarian Constitution, and censorship is illegal (Article 39 and Article 40 of the Constitution of the Republic of Bulgaria). There are, however, a number of statutes which provide for the blocking of certain information in particular circumstances, as set out below.

LAW ON ELECTRONIC COMMUNICATIONS 2007 (the “LEC”)

In specific scenarios, the competent bodies within the Ministry of Interior, the State Agency for National Security, the Military Police Service and the National Security Office may block, by technical means, the use of electronic communications services (Article 301, paragraph 3). These scenarios include, but are not limited to, the following: counter terrorism activities; detecting, identifying and defusing explosive devices and explosive substances; freeing hostages; detecting and preventing the use of national radio spectrum against the state and when national security is threatened.

In addition, upon declaration of a state of martial law or a state of war and following the decision of a competent authority, the Communications Regulation Commission may suspend the validity of issued permits for radio spectrum frequencies and prohibit the use of radio equipment and radio spectrum for civil needs (Article 302 and Article 120).

The undertakings providing public electronic communications services may furthermore collect, process and use electronic communications data retained for detecting and terminating unauthorized use of electronic communications networks and facilities, where there is reason to consider that such actions are being performed and this has been claimed in writing by the affected party or by a competent authority (Article 256, Paragraph 1).

LAW ON ELECTRONIC COMMERCE 2006

On the grounds of Article 15(b) and Article 16, paragraph 2 (related to providers of caching or hosting services), the providers of information society services must either delete the information stored in the course of provision of the services or block access to such information pursuant to an order of a competent authority. The law does not specify the meaning of “competent authority”, however this would likely be interpreted to encompass all authorities with the power to lawfully require or implement blocking of access to content or those engaged in investigation and prevention of crimes, such as, the police at the Ministry of Interior, or the State Agency for National Security.

LAW ON THE MINISTRY OF INTERIOR 2014 (the “LMI”)

Under Article 64, paragraph 2, police authorities are entitled to issue mandatory orders (as a general rule written, where possible and as long as they are understandable by the persons to whom the order is directed) if necessary to fulfil their functions. The orders must contain certain information determined by the law and are subject to appeal. Furthermore, in the process of detection, identification and deactivation of explosive devices and explosive substances, police authorities may block electronic communications by using technical means (Article 90).

LAW ON GAMBLING 2012

Web access may be blocked under a resolution of the State Commission on Gambling (the “Commission”) if a violation of the gambling rules is not remedied within three days of a resolution setting out the violating websites. For the purposes of blocking the access, a request is then made by the State Commission on Gambling to the Chairman of the Sofia Regional Court and a writ of the court is published on the website of the Commission. The blocking of the websitewebsite is performed by the relevant undertakings within 24 hours of the publication of the Court order at the website of the Commission.

COUNTER TERRORISM LAW 2016

If websites with content that incite terrorism or which spread information about the perpetration of terrorism are detected, both the Ministry of Interior and the National Security State Agency may request the blocking of access to such websites. The request should be justified and is subject to judicial control by the Chairman of the Specialized Criminal Court, who on his/her turn may deny the blocking or issue an ordinance for blocking. The court orders for blocking the access are published immediately on the official websites of the Ministry of Interior and the National State Security Agency. As of the publication all undertakings providing electronic communications networks and/or services must immediately block access to the websites listed in the court ordinance. The blocking should last until the court resolution has been repealed and information for authorizing the access to the websites has been published on the official websites of the Ministry of Interior and the National State Security Agency (Article 32).

OVERSIGHT OF THE USE OF POWERS

LAW ON SPECIAL INTELLIGENCE MEANS 1997 (the “LSIM”)

Control over the legitimate use of interception carried out under the LSIM is undertaken by the Chairman of the State Agency on Technical Operations if the special intelligence means are used by that agency; by the Chairman of the State Agency for National Security, if the special intelligence means are used by the units of the agency; or by the Minister of Interior where special intelligence means are used in relation to the investigation involving undercover officer of the Ministry of Interior (Article 34a).

NATIONAL BUREAU OVERSIGHT

The monitoring of the procedures for authorization, enforcement and use of special intelligence means, the storage and destruction of information obtained through special intelligence means, as well as of protection of citizens’ rights and freedoms against illegal use of special intelligence means is carried out by the National Special Intelligence Means

CONTROL BUREAU (the “National Bureau”) (an independent government agency, consisting of five people elected by the Parliament for five years and supported by an administrative office).

The National Bureau has the authority to request information from the state authorities that carry out functions related to special intelligence means (including interception), to issue mandatory instructions related to improvement of the regime of use and enforcement of special intelligence means, as well as of the storage and destruction of the information obtained through such means, and to citizens against which special intelligence means have been applied illegally. Where special intelligence means and storage and destruction of the data procured through use of these means have been used illegally, the National Bureau will notify the prosecutor’s office and the heads of the controlling bodies and departments mentioned in the paragraph above.

COMMITTEE OVERSIGHT

Article 34h of the LSIM provides for a Committee for Oversight of the Security Services, the Deployment of Special Surveillance Techniques and the Access of Data under the Law on Electronic Communications. This is a standing Committee constituted at the Bulgarian National Assembly under the Rules of Organization and Procedure of the National Assembly.

The Committee carries out parliamentary oversight and monitoring with respect to the procedures of authorization, enforcement and use of special intelligence means and the storage and disposal of data obtained.

LAW ON ELECTRONIC COMMUNICATIONS 2007 (the “LEC”)

REGULATORY OVERSIGHT

Under Article 261a of the LEC, the Personal Data Protection Commission (the “Commission”) is the supervisory authority in relation to security of the data retained under Art. 251b, Paragraph 1.

The Commission has the right within its supervisory competence to require information from the undertakings which provide public electronic communications networks and/or services and issue binding instructions that are subject to immediate execution. In addition, each year the Commission provides the Bulgarian Parliament and the European Commission with summarized statistical information on:

1)the cases in which retained data has been provided to the competent authorities;

2)the time elapsed between the initial date on which the data has been retained and the date on which the competent authorities requested the provision of the retained data; and

3)the cases where requests for retained data could not be executed.

COMMITTEE OVERSIGHT

The National Assembly, acting through a committee designated by the Rules of Organization and Procedure thereof (Committee for Oversight of the Security Services, the Deployment of Special Surveillance Techniques and the Access of Data under the Law on Electronic Communications), carries out parliamentary oversight and monitoring of the procedures for permission and implementation of access to the traffic data retained under the LEC, as well as for protection of citizens’ rights and freedoms against lawful access to any such data. In pursuance of its activities, the committee has the right to:

1)require information from the authorities competent to request access to retained traffic data from the providers of electronic communications, as well as from the Personal Data Protection Commission;

2)inspect the procedure and the manner of storage of the retained traffic data, the requests and the orders as well as the procedure for destruction of the traffic data;

3)access the premises of the requesting authorities and the undertakings providing electronic communications networks and/or services; and

4)prepare annual reports on the audits held and to propose improvement of the procedures for retention and processing of the retained traffic data.

The Ministry of Interior, the Ministry of Defence, State Agency National Security, State Agency Intelligence Service and the Chief Prosecutor must prepare by not later than March 31 of the year following the reporting year an annual report summarising the requests made, the court orders issued, the data obtained and the retained data destroyed. The report is provided to the parliamentary committee. If, based on such reports, the committee has established any non-compliance, the latter notifies the prosecutor’s office, the respective noncompliant authority and the undertakings providing electronic communications networks and/or services. The latter have the obligation to implement corrective measures and inform the committee in due term of such measures and their implementation. The committee notifies the affected data subjects ex officio, unless this could prevent reaching of the purposes of processing (national security related, prevention, detecting, investigation of crimes, etc.).

LAW ON THE MINISTRY OF INTERIOR 2014 (the “LMI”)

The orders of the Minister of Interior for temporary restriction of certain activities may be appealed by the individuals or legal entities affected within seven days via the Minister of Interior before the Supreme Administrative Court (the “Court”). In this case the procedures under Administrative Procedure Code are followed.

In addition to the court procedures, the Administrative Procedure Code allows for individuals or organisations to contest administrative instruments before the superior administrative body (for example, the administrative procedure for contesting orders by the police, in relation to safeguarding human rights and civil liberties would be before the Director of Police, of officer that has issued the order). Appeal before the superior administrative body is not a prerequisite for further court appeal before the respective court.

PUBLICATION OF AGGREGATE DATA RELATING TO THE USE OF GOVERNMENT POWERS

LAW ON THE PROTECTION OF CLASSIFIED INFORMATION 2002 (the “LPCI”)

Information relating to the lawful use of special intelligence means (including interception) is deemed to be a state secret as set out in Appendix 1 of the LPCI. Access to classified information and state secrets is granted on a need-to-know basis to persons that have permission, and this permission may be granted by the State Commission for the Security of Information (Article 8) or the State Agency for National Security (Article 11). Therefore, publication of such information may not be published unless authorised by these agencies.

CONSTITUTION OF BULGARIA

Under Article 5, paragraph 5 of the Bulgarian Constitution, all laws must be published. Therefore, there is no power for the government to prevent anyone from publishing the laws to which they are subject.

Law stated as at 20 February 2017

This information was originally published in the Legal Overview to the Telenor Group report on Authority Requests for Access to Electronic Communication in May of 2015, which was updated in March of 2017.

2018-03-19T21:22:25+00:00 March 15, 2018|Categories: legal frameworks|
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