Governments across Europe are implementing new rules to require
surveillance assistance and the retention of data by ISPs and
telcos for purposes of law enforcement. One hotly contested issue
is the question of who should pay the associated costs. And many
ISPs will be envious of a recent decision by Austria's Federal
Constitutional Court.
The decision says that the Austrian law that compels the
country's telcos and ISPs to implement retention measures at their
own expense is unconstitutional.
The Telekommunikationsgesetz (Telecommunications Law) states
that providers should receive an adequate refund for their expenses
for State-ordered wiretappings, but that they do not get any refund
for the significant costs to install the equipment in the first
place.
The court ruled that a regulation that imposes a significant
burden on third parties may only be justified in exceptional
circumstances. It added that, the fact that technical requirements
may be changed every year and are only determined by secondary
legislation does not meet the constitutional principle of clarity
and proportionality.
Accordingly, the Austrian state must bear the implementation
expenses unless it can show exceptional circumstances for burdening
the private sector with them.
