Wednesday, January 26, 2011
The objective of this work is to analyse Chapter II of Royal Decree 424/2005, dated 15th April, by which a procedure is regulated to tap electronic communications with the aim of verifying if this practice affects the conditions that limit the essential content of article 18.3 CE. It is concluded that these regulations do not affect article 18.3 CE as refers to the enumeration it includes of the types of data associated to electronic communications that can be legally intervened together with the content thereof. It does, however, mutilate the essential content of article 18.3 CE as refers to the obligation of the judge to determine at least some of such data in the legal tapping order. Inasmuch as the secret of communications is a formal right that limits its content to the possibility of intervene communications by means of a previous judicial resolution detailing the causes thereof, the associated data obtained as a consequence of such an intervention are not protected by article 18.3 CE, but in any case by articles 18.1 and 18.4 CE. This means that once the judicial organ has explicated in its judicial intervention order the objective suspicions of an alleged serious crime as well as the inexistence of other means to prove such a crime that would clarify the alleged criminal conduct that is being investigated, the data obtained as a consequence of such an interception would be protected by article 18.1 CE if that information is revealed to third parties, or by article 18.4 CE if the information is used for other purposes that are different from those for which the tapping was authorised. As a derivation of this, it is also not necessary that organic legislators regulate what data associated to the communications the judges are to mention, as it is necessary to leave a margin of action for the judicial authorities to determine if they believe it is convenient to gather certain associated data mentioned in the regulations, or if a generalised judicial opening of electronic communications is necessary that gathers both the content of the communication as well as data that are associated thereto.
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