The act envisaged in paragraph H can be carried out only by the court’s approval or in case of urgent necessity when the delay may cause the destruction of important data or make it impossible to obtain such data. Paragraph L does not obligate the investigative bodies to obtain court approval; neither has it envisaged the situation of urgent necessity when it is impossible to obtain such approval.
Thus, according to the formulation of paragraph L of part II of Article VII, it is possible to monitor closed internet communications without the court’s approval or without “urgent necessity”. Georgian Young Lawyers Association (GYLA) finds this provision unconstitutional. Lawyer from GYLA, Giorgi Gotsiridze, states that this violates the Article 20 of the Constitution – the right to private life.
According to Giorgi Gotsiridze: “Paragraph L of part II of Article VII of the Law on Operative-Investigative Activity “monitoring of internet communications” envisages observing “closed internet communications” which can imply observing for example, a closed group discussion on some social network. The operative-investigative bodies are authorized to observe or take part in such discussion by conspirative or secret means. We consider this to be violation of private life. According to Article 20 of the Constitution, the restriction of the right to private life shall be permissible by a court- decision or without such a decision in the case of urgent necessity provided for by law. The abovementioned provision does not envisage the obligation of a court decision or the case of urgent necessity. Thus it violates the Georgian Constitution.”
Kakhaber Anjaparidze, the Deputy Head of Parliamentary Committee of Legal Issues, the initiator of the amendment states that paragraph L envisages a situation in which the investigative agent establishes communication with the suspect and the “monitoring of internet communication” concerns the communication between the agent and suspect.
“This provision concerns the situation when the investigative agent gains the trust of the suspect and exchanges e-mails or private messages with the individual. It does not envisage a situation when two private persons are monitored by the investigative body. Thus it is an ordinary operative-investigative act and does not need court approval,” – states Kakhaber Anjaparidze.
Giorgi Gotsiridze states that this provision is too broad and its formulation creates the possibility of monitoring a closed internet discussion between private individuals by the investigative body. GYLA is going to file a complaint to the constitutional court on the corresponding provision.
It should be noted that the Freedom House Report ‘Freedom on the Net 2011’ regarding Georgia states that, “New amendments to the law on the Operative-Investigative Activity, promulgated in September 2010, requires that websites, mail servers, internet service providers and other relevant companies make available, private communications such as emails and chats to law enforcement authorities, provided that a court approval is obtained. It is yet to be seen how the new law will be implemented in practice.”
The provision referred to in the Freedom House report represents paragraph H of part II of Article VII of Law on the Operative-Investigative Activity. Paragraph L, which does not envisage the court approval, is not mentioned in the report.
Nino Tsagareishvili
