In recent days, we have drawn attention to changes in the Criminal Procedure Code. We will add more additional information today. We don’t want to say they’re shocking. Let everyone make up his own mind.
Did they trick us MPs into having internet censorship?
Why are we calling?
As of February, we have a new section in the criminal code. It is §7b, which we find objectionable because it gives incredible powers to the police. Any law enforcement agency can shut down any website for up to 90 days. Such powers do not belong in the rule of law.
The actual wording of paragraph (2) of new § 7b is as follows:
(2) Where necessary to prevent the continuation or repetition of criminal activity, a person who holds or has under his control data stored in a computer system or on a medium may be ordered to prevent other persons from accessing such data.
(3) An order under subsection (1) or (2) may be issued by the President of the Chamber and, in pre-trial proceedings, by the public prosecutor or a police authority. The police authority needs the prior consent of the public prosecutor to issue such an order; without prior consent, an order may be issued by the police authority only if prior consent cannot be obtained and the matter cannot be delayed.
Our analysis and comments can be found in our previous articles, which contain a summary of the case and suggestions for modification. So we won’t repeat everything today, but we will add new information.
It is not really the EU’s fault. We create the police state ourselves. It’s a Czech specialty.
In our last article, we said that the EU was not to blame for the new legislation. It is interesting that the government proposal that brought the new section to the Chamber of Deputies contains information that the proposed legislation is necessary to bring our legal system into line with EU legislation.
And our MPs blindly voted for it…
The government proposal says the following verbatim on page 25, plus there is further information on pages 50 and 51 of the government proposal and the explanatory memorandum respectively.
The modification proposed in § 7b tr. ř. and in § 65a and § 65b of Act no. 104/2013 Coll. ensures the full implementation of Articles 16 and 29 of the Convention on Cybercrime of 23. 104/2013 Coll. of November 2001 requiring the expeditious preservation of data for the purpose of their subsequent seizure in criminal proceedings.
Yes, but there’s nothing in this Convention about police authorities being able to shut down websites… It literally says:
§65a
Data retention at the request of the Czech Republic
(1) If, for the purposes of criminal proceedings, it is necessary to ensure the expeditious storage of data stored in a computer system or on an information carrier located in the territory of a foreign state, the Police Department of the Czech Republic, which performs the function of a contact point pursuant to an international treaty (hereinafter referred to as “Police Department”) shall, with the prior consent of the judicial authority, request the foreign authority to store such data.
(2) A request for data retention shall include
(a) the name of the authority making the application and the date on which the application was made,
(b) a brief description of the act which is the subject of the criminal proceedings and its legal qualification,
(c) the precise identification of the data whose preservation is requested and their connection with the offence for which the criminal proceedings are brought,
(d) available information necessary to identify the person who holds or has under his or her control the requested data or to identify the location of the computer system or other medium,
(e) the reason why the data must be retained; and
(f) information that the judicial authority intends to make a request for legal aid or to issue a European Investigation Order requesting the preservation of stored data.
(3) The translation of the request referred to in subsection (2) shall be arranged by the Police
§ 65b
Retention of data at the request of a foreign state
(1) If a foreign authority requests the expeditious storage of data stored in a computer system or information carrier located in the territory of the Czech Republic, the request shall be processed by the Police Department with the prior consent of the judicial authority.
(2) The judicial authority competent to grant consent under subsection (1) shall be the judicial authority which shall be competent to proceed under Part Three of Title I, Part 2 or under Part Five of Title XI, Parts 1 and 2, if the foreign state subsequently sends a request for legal assistance or a European Investigation Order to the Czech Republic for the purpose of seizing the stored data.
(3) A data retention order shall be issued for a limited period of time, which shall not be less than 60 days and not more than 90 days; it may be extended by a new order for a further 90 days at the reasoned request of the foreign authority. Otherwise, Section 7b of the Code of Criminal Procedure shall apply mutatis mutandis.
(4) The request of a foreign authority for the preservation of data cannot be granted if it does not contain the elements referred to in Section 65a (1). 2 and the foreign authority fails to complete it within the required period of time, despite having been warned of the consequences thereof.
(5) If, in view of the circumstances found, it can be considered that ordering the retention of data for a particular person does not sufficiently ensure the future availability of such data or that such a procedure could lead to the disclosure of information on criminal proceedings conducted in a foreign state, the Police Service shall immediately inform the foreign authority thereof and request information as to whether it still insists on the execution of the request or whether it will withdraw it.
(6) The Police Department shall inform the foreign authority of the manner of processing its request and shall warn it that a request for legal assistance or a European Investigation Order requesting the seizure of the stored data must be sent to the Czech Republic before the expiry of the period for which the order for data retention was issued, or extended pursuant to paragraph 3, otherwise the data will no longer be stored. If the foreign state sends such a request or order to the Czech Republic to the judicial authority before the expiry of the period set out in the data retention order, the data retention period shall be extended until the judicial authority has finally dealt with the request or order; the judicial authority shall immediately inform the person against whom the data retention order is directed.
Do you see anything in there about shutting down sites or making data inaccessible?
Did they cheat our MPs?
Do you think it is possible to cheat all MPs, or a supermajority? So connect the previous paragraph with what you read next. The explanatory memorandum of the government proposal states:
The provision also allows for an expeditious preliminary response to defective data and orders the person holding or controlling it to prevent access to such data by others for a limited period of time if this is necessary to prevent the continuation or recurrence of criminal activity (typically fraudulent e-shops, malicious code – viruses, worms, sources of DDoS attacks, etc.). Following the above measures of a provisional and temporary nature, it is then possible to obtain the removal of such data under other regulations (e.g. under Act No. 480/2004 Coll.). A similar arrangement can be found in e.g. in the Slovak Criminal Procedure Code.
On the basis of this false claim, internet censorship has entered our legal system in the form of a new paragraph (2) of Section 7b of the Criminal Procedure Code. This false claim alone was enough to cause us to have possible censorship on the Internet since February, which even the so-called “censorship” does not have. developing countries?
So how is it in Slovakia? The situation here is worse than in the East.
§ 90
Retention and release of computer data
(1) Where the preservation of stored computer data, including operational data, which has been stored by means of a computer system is necessary for the elucidation of facts material to criminal proceedings, the President of the Senate and, before the commencement of criminal proceedings or in preparatory proceedings, the public prosecutor may issue an order, which must also be justified by the facts, to the person in whose possession or under whose control such data is located or to the provider of such services, to
(a) preserve and maintain the integrity of such data,
(b) allow a copy of such data to be made and retained,
(c) prevented access to such data,
(d) they have removed such data from the computer system,
(e) they have released such data for the purposes of criminal proceedings.
(2) In an order under paragraph 1(1)(a), a person shall be required to. (a) or point (a) (c) the period of time for which the data will be retained must be specified, which may be up to 90 days, and a new warrant must be issued if the data needs to be re-stored.
(3) If the retention of computer data, including operational data, is no longer necessary for the purposes of criminal proceedings, the President of the Chamber and, before the commencement of the prosecution or in the preparatory proceedings, the public prosecutor shall without delay issue an order to cancel the retention of such data.
(4) An order under paragraphs (1) to (3) shall be served on the person in whose possession or control such data is held or on the provider of such services who may be required to keep secret the arrangements specified in the order.
(5) A person in whose possession or control computer data is held shall release that data, or a service provider shall release information relating to that service which is in his possession or under his control, to the person who made an order under paragraph (1) or to a person specified in an order under paragraph (1).
Do you see anything in the text about the police doing anything themselves? That is, without a court or a prosecutor (i.e., in Slovakia, a prosecutor)?
No, it’s just that in the Czech Republic we’ve gotten to the point where the police can do things like this without court or prosecutor approval.
This is similar to what is done in other democratic countries like Slovakia. Only in the Czech Republic have we gone further… and we’ve introduced police censorship of internet content.
The same, or similar, legislation exists in Poland, where we also operate and have employees. Only in the Czech Republic have we gone one step further.
We had to call. We can’t leave it at that.
Over the last few years, several different and strange things have happened on the Czech Internet. These are not things associated with just one government or one political party. I’m sure it’s not. Occasionally, there has been an initiative to save the internet that fights for the public, and it has always lost so far.
At one time, there was a fight against a ban on advertising on foreign gambling sites. It didn’t work. And the censorship is in place. We remember well our fight with the General Directorate of Customs…
For the second time, the fight was for freedom related to copyright. This is what one of the political parties is fighting for. They lost their fight.
It is strange, however, that in the case of the biggest restriction of freedom on the Internet to date and literally censorship, no one has spoken up. It passed in the Chamber of Deputies of the Parliament of the Czech Republic with the consent of the parties that based their success on the protection of freedoms and the protection of Internet freedom. No one’s called! No one. We are the first to speak up and we don’t want to let it die down.
In our view, the new provision is an undemocratic step that limits freedom of speech. We know what freedom of speech is. We know it has its limits. But we should not allow such censorship by the police authorities.
It’s very easy to abuse.
In our last article we also criticized another law (No. 480/2004 Coll., on certain information society services), which has been in force for a long time. There is also one problematic section, namely Section 5. It can be used for anything. Currently, the police are trying to force us to shut down one website (still under the old legislation) through this section. If we do not shut down the site, we risk being held liable for damages (if any) as a company. This exposes our statutory representative to the risk of criminal prosecution and possible compensation.
Interesting form of pressure to shut the site down. When the relevant officers 🙂 find out about the existence of the new section 7b of the Criminal Procedure Code, they will shut down the website immediately and by themselves.
We got a number on Andrei. We consulted with him. The situation in our country is becoming similar to that in Russia.
Yes, we have a number for our Moscow friend Andrei. Yes, we consulted him. Yes, we agreed that the situation in the Czech Republic is better than in Russia, but the path is similar to that in Russia.
We will write about the censorship of the Internet in Russia next time. Don’t worry. We’ve caught up with Russia.
Just to give you a taste, our politicians were probably inspired by Russia. In our country we have in law 90 days to be shut down by the police, in Russia 3 months (so give or take 90 days) to appeal in court. However, the procedure is stricter here and cannot be delayed. Not to mention that in Russia this procedure is only used for terrorism and similarly serious crimes. For us, we will be able to use it for example for competition, dealing with gossip or uncomfortable comments…
For more information, see Wikipedia, from which the following text is taken:
Media in the Russian Federation, including the internet, is regulated by Roskomnadzor (Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications), a branch of the Ministry of Telecom and Mass Communications.
Roskomnadzor, along with several other agencies such as the Federal Drug Control Service, the Federal Consumer Protection Service, and the office of the Prosecutor General, can block certain classes of content without a court order: calls for unsanctioned public actions, content deemed extremist, materials that violate copyright, information about juvenile victims of crime, child abuse imagery, information encouraging the use of drugs, and descriptions of suicide. Other content can be blocked with a court order.
Censorship of opinions in Russia is through a central body. Shutting down websites is also possible in Russia without court approval, but only for selected crimes, i.e. by a public prosecutor (or other authority). All other cases with court approval. In the Czech Republic we went further and shut down anything, any content (i.e. any inconvenient website, for example), in our country any police officer can do it.
Hosting providers, site owners, and ISPs
When a site is added to the registry, the web hosting provider must within days inform the owner about the situation and the need for removal of content. The site owner must, within days of the receipt of the notification from the hosting provider, remove the page or pages with the offending content. If the site owner fails to do so, the hosting provider is obliged to restrict Internet access to the site.
If the site owner fails to remove the pages as demanded, or if the hosting provider and owner of the site of these fails to restrict access to the site, the site’s network address is added to the government’s registry.
Internet Service Providers are required to restrict access to addresses listed in the proposed registry. The legislation ignores the fact that the same IP address may in fact be used by several thousand sites (earlier that year some ISPs have already blocked such an IP address included in the Federal List of Extremist Materials[8]).
Decisions on inclusion in the registry of domain names, links to website pages and site network addresses can only be appealed in court for a limited 3-month period.
Note that there is no indiscriminate shutdown by the police authorities in Russia either. Usually there is a procedure – site owner, hosting and then some blocking. They are also aware that blocking is technically complicated. And so we could go on.
We did it. We are probably the “best” in the world at something, or rather we are among the “best”. Um, if internet censorship and excessive police powers can be considered an achievement.
Conclusion
If the state proceeds in this way, everyone will seek their own way to protect their freedoms, and they will find a way. People will host their stuff abroad. We, as a hosting company, are seriously considering having our data outside the Czech Republic and encrypting everything. We will be setting up branches in other countries later in March. When the Police of the Czech Republic want to get access to the data when they need it, they will be out of luck. Considering that we host (or have something in common with) about 18% of the Czech Internet, the consequences can be (for the state) directly catastrophic…
We do not endorse any illegal content. We do not condone illegal things on the internet. On the contrary. We are always fighting this and we have better tools and procedures for this. We protect freedom of speech. Yes, it is not unlimited. It has its limits, but we must fight for it.
Finally, we would like to thank all the brave people who have supported us in our activity by sharing our articles or social media. We cannot let freedom be stolen.
PS for the Police of the Czech Republic:
If you want to silence our website 🙂 , beware of shutting down the wedos.cz domain. More than 300,000 other domains have DNS records linked to it.