The art. 18.3 of the Constitution guarantees the right to
secrecy of communications and, especially, postal, telegraphic and telephone
messages , except when there is a judicial resolution and in accordance with
the form and cases provided by law.
In the same sense, although with a broader concept of
communications, art. 7 of the Charter of Fundamental Rights of the EU proclaims
the right to respect for private and family life, establishing that everyone
has the right to respect for their private and family life, their home and
their communications.
In this regard, following the prescriptions of Directive
2002/58 / CE, LGTel20 established the obligation for operators that operate
public electronic communications networks or that provide electronic
communications services available to the public to guarantee the secrecy of
communications.
However, this right to secrecy or inviolability of
communications cannot be understood as an absolute right or one that does not
accept exceptions in certain circumstances.
The Constitutional Court has established the possibility of
intercepting communications as long as there is judicial authorization, and it
respects the principle of proportionality, for which a series of conditions
must be met:
1. That the
interception measure is suitable to achieve the aim pursued (suitability
judgment).
2. That the
measure is necessary insofar as there is no other less intrusive to achieve the
end pursued (judgment of necessity).
3. That the
measure is weighted and balanced in relation to the aim pursued (judgment of
proportionality).
In this sense, the LGTel also provides for the obligation of
operators to carry out interceptions that are authorized by the judicial
authority, in accordance with:
1. The
Criminal Procedure Law
2. Organic
Law 2/2002, of May 6, Regulating the Prior Judicial Control of the National
Intelligence Center
3. And other
applicable Organic Laws.
The RD 424/2005, of 15 April , expressly mentions, apart
from the views of interceptions arranged in the art. 579 of the Criminal
Procedure Law for the discovery or verification of important facts in criminal
cases.
Interceptions can be carried out for any type of electronic
communications (telephony or data transmission, video, audio, exchange of
messages, files or fax transmission).
The subjects obliged to adopt these measures, following the
established procedures, are the operators that provide or are in a position to
provide electronic communications services available to the public or to
establish or exploit public communications networks in Spain , regardless of
their nature. , territorial scope and time when their authorization took
effect, even if they only provide access to a public electronic communications
network in Spain, and all equipment that may be used to carry out the
interception is under the jurisdiction of another State .
Once the interception has been ordered, the obligated
operator must provide the so-called authorized agents with the information
established by the interception order , but also other information, when
available, regarding the identification of the persons involved in the
communication, domicile in that the operator makes the notifications, the
number of the owner of the service, identification of the terminal, etc. ( art.
39 paragraphs 5, 6 and 7 of the LGTel, and art. 88 of RD 424/2005, of April 15
).
This duty to carry out interceptions in certain cases will
be accompanied by other obligations in relation to the adoption of measures
that make the interception possible, which will be the responsibility of the
operator and which are developed in RD 424/2005, of April 15 , that establishes
the procedure to follow in these cases.
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