CLFR - Bulgaria

Thursday, January 4, 2018 - 17:36

PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

LAW ON ELECTRONIC COMMUNICATIONS 2007

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. 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 implements the relevant interfaces that transmit electronic communications to these agencies.

LAW ON SPECIAL INTELLIGENCE MEANS 1999

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 severe crimes, as listed in Article 3 (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.

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 (Article 13).

Interception under the LSIM can only be undertaken where there is a credible written request from the heads of these authorities or by a supervising prosecutor. The requests should contain certain statutory conditions (such as facts substantiating the view that a severe crime has been committed, the proposed time period for the use of interception, and activities undertaken so far in the investigation).  The request should be submitted to the Chairman of the Sofia City Court, of the respective district 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

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 severe 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 credible 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:

  • information about the crime, the investigation of which requires use of special intelligence means;
  • 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);
  • information relating to the individuals that will be the subject of the interception;
  • information on the operational investigative methods (that the request is for interception);
  • the time period for use of interception (this is as a rule two months, but can be extended to six months); and
  • 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.

LAW ON THE MINISTRY OF INTERIOR 2006

The LMI provides that, for activities related to prevention, investigation and documentation of crimes and safeguarding the public order, the investigative bodies of the Ministry of Interior are authorized to collect, store and process information. “Information” is not defined and may therefore be widely interpreted. The process of gathering information includes control over communications in networks or separate communicational channels (Article 10, paragraph 2). These activities are carried out using special intelligence means (i.e. under the rules of LSIM), including interception.

LAW ON THE STATE AGENCY FOR NATIONAL SECURITY 2008

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 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:

  • data to establish the identity of the subscriber, the number or another identification feature of the electronic communications service;
  • 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
  • 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, the date, time and duration of the communication, 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 location label (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 the data retained is limited to the needs of national security and for the prevention, detection and investigation of serious crimes.

The retained data may be accessed by the authorities listed in Art. 251(c) (such as certain departments 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.The retained data is accessed only after a credible court order is given by the Chairman of the respective regional court (or a judge authorised by him).

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 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 credible 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 severe intentional crimes.

NATIONAL SECURITY AND EMERGENCY POWERS

LAW ON ELECTRONIC COMMUNICATIONS 2007

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, provided that the competent authorities in this case are the State Agency for National Security, certain bodies of the Ministry of Interior and National Security Office.

In accordance with Article 302 if a state of martial law or a state of war is declared, the Commission for Regulation of Communications (following a decision 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.

Where martial law, a state of war or a state of emergency has been declared, the terms and procedure for ensuring electronic communications shall be established by the Council of Ministers under the proposal of the Minister of Transport, Information Technology and Communications in coordination with the relevant competent authorities.

Subject to Article 17, the Minister of Transport, Information Technology and Communications is given broad powers to ensure the continued provision of electronic communications networks and services for the purposes of managing natural disasters (as defined by the Disasters Protection Act) and following any declaration of a state of martial law, state of war or a state of emergency (each 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.

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, where amongst other things, mobile and fixed communications services are determined as such activities. 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 2006

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, unless it is impossible to do, so long as they are 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).

CENSORSHIP RELATED POWERS

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 statues which provide for the blocking of certain information in particular circumstances, as set out below.

LAW ON ELECTRONIC COMMUNICATIONS 2007

In specific scenarios, the competent bodies within the Ministry of Interior, the State Agency for National Security 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: 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).

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 2006

On the grounds of Article 64, paragraph 2, police authorities are entitled to issue mandatory orders (as a general rule written, unless it is impossible to do so and so 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 web site is performed by the relevant undertakings within 24 hours of the publication of the Court order at the web site of the Commission.

OVERSIGHT OF THE USE OF POWERS

LAW ON SPECIAL INTELLIGENCE MEANS 1999 (THE “LSIM”)

Control over the legitimate use of interception carried out under the LSIM is undertaken by the Head of the State Agency on Technical Operations if the special intelligence means are used by it; by the Head of the Technical Operations General Directorate with the State Agency on 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, para 2).

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, the storage and disposal of data obtained, and the protection of civil rights and liberties against illegal use of special intelligent means, as well as the authorization of access and actual access to data under the LEC, and the protection of civil rights and liberties against illegal access to such data. Not later than 31 May of each year the Committee submits to the National Assembly a report on its activity which should contain summarized information on the issues mentioned above. In addition, the report should encompass any inspections and proposals made for improvements of the procedures of storage and processing of data under the LEC.

Please note that here is no explicit oversight in relation to special emergency powers.  The Minister of Defence, however, does have oversight functions in the area of defence and carries out such functions through an inspectorate.

LAW ON ELECTRONIC COMMUNICATIONS 2007 (THE “LEC”)

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 to require within its supervisory competence 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:

  • the cases in which retained data has been provided to the competent authorities;
  • 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
  • the cases where requests for retained data could not be executed.

LAW ON THE MINISTRY OF INTERIOR 2006 (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 LAW AND AGGREGATE DATA RELATING TO LAWFUL INTERCEPT AND COMMUNICATIONS DATA REQUESTS

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.

It should be noted that LPCI only affects information acquired using special intelligence means (including interception) and not, for example, requests for communications data retained under the Law of Electronic Communications.

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 31 March 2015

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.