
Slovak Constitutional Court cancels mass surveillance of citizens - sinak
http://www.eisionline.org/index.php/sk/projekty-m-2/ochrana-sukromia/109-the-slovak-constitutional-court-cancelled-mass-surveillance-of-citizens
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lubos
This is related to "Data Retention Directive" [1] which was declared invalid
by EU Court of Justice for violating EU Charter of Fundamental Rights.

It means member EU states must update their legislation which will prohibit
metadata retention by communication operators (including ISPs) to absolute
minimum (generally only what's required for invoicing).

That's why this ruling by Slovak Constitutional Court seems a bit pointless.
Slovak parliament would prohibit mass surveillance sooner or later anyway as a
result of EU Court of Justice ruling.

[1]:
[http://en.wikipedia.org/wiki/Data_Retention_Directive](http://en.wikipedia.org/wiki/Data_Retention_Directive)

~~~
madez
I wonder why politicians that enact unconstitutional laws don't get punished.
They breached the rules. Everybody else except bankers and the police get
punished for that.

~~~
ctolsen
Leaders who do unconstitutional things might be. If you trample on your
citizens sufficiently, you might live to see the inside of the Hague.

But it would be completely ridiculous to imprison someone for passing a law.
The process here did _exactly_ what it's supposed to do. Politicians make a
law. People are unhappy with said law and challenge it. People win in court.
Law is no longer in force and the people get their redress.

Also, politicians might enact an unconstitutional law with popular support.
And even if that doesn't happen, it is far from obvious what is constitutional
and what is not. Should John McCain go to prison because of Citizens United?
Should local politicians be incarcerated after the city lost McDonald v
Chicago? That would be ridiculous.

Lastly it would mean punishing people for something that doesn't have an
enumerated punishment. We don't do that in the modern world.

~~~
jsnathan
Intentionally violating the constitution is a violation of the privileges of
office. If it can be proven, they should be forced out of office.

As for the "punishment", it should clearly correspond to the actual law having
been passed, and in what manner it infringed on the constitutional rights of
citizens.

Popular support does not make this any better, as minorities are usually the
ones who end up hurt.

~~~
ctolsen
Politicians can be forced out of office for anything. It's called elections.
Most countries also have some kind of impeachment process.

Are you saying politicians shouldn't attempt to do what their constituents
sent them to do, under the penalty of _imprisonment_? Minorities are protected
not by politics, rather by judicial review, which worked great in this case.

~~~
jsnathan
Are you suggesting that elections should give people a status that puts them
beyond the countries constitution?

Remember that these principles are so general, they must apply equally to
Western politicians pushing security policies, as to e.g. Muslim politicians
in Egypt or other ME countries pushing for Sharia-inspired policies.

What their constituents want is a nice idea until this violates the most basic
rights of citizens spelled out clearly for this purpose, i.e. to guide and
limit any future laws.

That being said, there is always the possibility of revising the constitution.
Even if that is not a good idea. But for good reason, that is a lot more
difficult to accomplish.

~~~
vidarh
I don't know the specifics here, but as far as I know it is fairly rare for
constitutions to have language that specifically make it illegal for their
politicians to pass a law. The US is a strange outlier there with its use of
phrases like "Congress shall make no law (...)".

The issue is not that elections give people a status that puts them beyond the
constitution, but that the constitutions rarely make it a crime to pass
unconstitutional laws at all:

In most cases of unconstitutional laws, the laws tend to be unconstitutional
not because it is against the law to pass them, but because the rules they add
can't be reconciled with portions of the constitution in question, and so are
found to be invalid or similar.

Even in the case of the US - or any other countries with similar language -
note that even in those cases constitutions specifically does not (at least
not in _any_ case I know about) follow the pattern of a criminal code: It does
not set criteria for punishment. So even if you were to get a court to assign
blame and e.g. "convict" Congress, there would be no consequence.

If you want politicians to be punished for passing such laws, then that in
itself would require a massive constitutional change.

Generally you should assume that this is intentional, given that the judiciary
is explicitly separate and independent, and so one can rarely assume that
individual politicians can know whether or not any given law will at some
future date be found to conflict with the constitution. Especially given that
interpretations of constitutional law, as any other, tends to evolve over
time. Sure - there might be the odd really blatant attempt at passing
something silly - but those really blatant attempts are also the least
dangerous and least important, as they will be struck down quickly.

The dangerous ones are exactly the ones that are sneakily enough formulated
that they stand a chance to escape unscathed. But then, those are also the
ones where it is unreasonable to assume that the people voting for it had
reason to believe it would be unconstitutional.

~~~
jsnathan
Contrarily I would expect a clause prohibiting unconstitutional laws in pretty
much every single constitution ever written.

As you say however, constitutions rarely define crimes, and so making the
passing of unconstitutional laws a crime would be an unexpected outlier. This
is not however what I am talking about.

In passing a law that knowingly violates the constitution, the politicians are
acting to _enable_ crimes, or rather, actions considered crimes under existing
legislation. This action takes place before the new (later to be hopefully
struck down) law is passed, and should be considered a criminal act.

As far as knowing what they are doing affecting their conviction or
punishment, I fully agree that not understanding that their actions will lead
to "necessarily criminal" consequences, should be considered a mitigating
factor.

~~~
vidarh
> Contrarily I would expect a clause prohibiting unconstitutional laws in
> pretty much every single constitution ever written.

That would be _very_ strange. Not even the US constitution has that because it
would be legally redundant. Of course a law that is inconsistent with the
constitution is invalid. There's no need to state that.

What the US constitution does is in itself unusual when it specifically calls
out what types of laws Congress can't pass rather than setting out principles
that would render these laws invalid because they'd conflict.

E.g. Norway's constitution used to have a clause that states a "right to work"
rather than stating that parliament can not pass laws that have the effect of
restricting peoples right to work. The effect is the same, and the former
approach is to my knowledge far more common in constitutional law.

> In passing a law that knowingly violates the constitution, the politicians
> are acting to _enable_ crimes, or rather, actions considered crimes under
> existing legislation.

A major part of a parliaments _function_ is to alter what is considered crimes
under existing legislation. If they can not do this without fear of criminal
prosecution if one of these laws are found to conflict with the
constitution... Well, that constitution would be amended very quickly after it
becomes obvious no laws gets passed anymore once politicians fear the whims of
a constitutional court which can change with every new appointment.

~~~
jsnathan
You might be right about this. I found no mention of this at all in the
Norwegian constitution, and I found various clauses explicitly giving immunity
for votes cast during their tenure in several other constitutions I looked at.
This presumably also applies to laws later ruled unconstitutional.

It is not what I would have expected, and strikes me as an oversight.
Moreover, it reeks of entitlement.

There should never be any necessity to pass laws that even come close to
violating a constitution, so no, I do not believe it would slow down the
legislative process.

Instead, it would provide an incentive to avoid passing laws which will
hopefully soon be struck down again, some 2-10 years later, but may cause
damage to society in the meantime.

If politicians need to be afraid of the constitutional court for passing a
specific bill, they should not pass it. There is also usually a way to demand
an opinion from the court before a bill is passed, which might absolve them in
this regard.

Surely the incentives should be set up to avoid unconstitutional laws from
ever being passed in the first place, and not to only be active for "short"
periods at a time?

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cies
I expect some small EU countries, probably East-European, have governments
that are agile/smart enough to pull serious datacenter biz into their borders
by passing sensible legislation and backing it up with actual (non-)action.

They are in many ways more sovereign then the larger and/or more economically
developed EU nations. And they still have politicians that are concerned with
(democratic) principles, instead of the two-faced puppets of plutocracy that
we find waaaay to often in high public positions.

Go Slovakia!

~~~
xixixao
Clearly you don't live in the region. Since I've lived in both Central Europe
and the UK and US, I can guarantee you that corruption blossoms (at least as
judged by the public) everywhere the same.

P.S.: Slovakia is in Central, not Eastern Europe, and things get generally
worse as you go East.

~~~
zurn
Transparency International publishes this thing so we don't need to go by gut
feelings re. corruption as judged by the public:

[http://www.transparency.org/cpi2014/results](http://www.transparency.org/cpi2014/results)

Spoiler: Big differences across Europe

~~~
yellowapple
I love how Greenland's, like, some sort of anti-corruption candle on that map.

Also, I'm surprised that New Zealand, of all places, ranks higher than all but
Denmark in cleanliness (and not surprised that North Korea and Somalia are
tied in corruption).

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scrrr
Rest of the EU: Please follow this example.

~~~
danieldk
It's already shut/shot down in multiple EU countries. E.g. in The Netherlands
in March and in Germany in 2010.

There seems to be a complete overview here:

[http://wiki.vorratsdatenspeicherung.de/Transposition](http://wiki.vorratsdatenspeicherung.de/Transposition)

~~~
moogly
Yes but some have no intention of annulling it. Sweden, for instance.

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malandrew
I want to see more and more countries adopt a similar measure publicly,
because as more countries pass such laws, the more it bluntly highlights that
the "Land of the Free" can only live up to that maxim if it too passes laws
canceling mass surveillance of its citizens.

~~~
dubcanada
Are you saying if more countries adopt things US will too?

Cause we all know that is just not true.

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throwaway12357
Does the "Data Retention Directive" [1] also apply to UK?

[1]
[http://en.wikipedia.org/wiki/Data_Retention_Directive](http://en.wikipedia.org/wiki/Data_Retention_Directive)

~~~
germanier
If it wouldn't have been challenged in the CJEU and thus made invalid
everywhere, yes it would.

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akulbe
If only enough other countries did this same thing... that there was enormous
enough pressure on the usual suspects (US, UK, NZ, CA, AU) to do this too.

I'm afraid we're long past the point of that happening, though, and it makes
me sad.

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jessaustin
Wow I wish we had Slovakian jurists here in USA.

~~~
koniiiik
No, you don't. (-; As we say in Slovak, one swallow does not make summer. Good
decisions like this one are massively outnumbered by "process errors" (or
whatever it is called on English) covering the asses of mafia backed by our
elected government officials.

~~~
thawkins
Not exactly a slovak saying, comes from greece

From wikitionary

An allusion to the return of migrating swallows at the start of the summer
season. From a remark by Aristotle (384 BCE - 322 BCE): "One swallow does not
a summer make, nor one fine day; similarly one day or brief time of happiness
does not make a person entirely happy."

~~~
koniiiik
I don't recall claiming that this saying originates from Slovakia, only that
it's one that is relatively common there. I have also heard it used in Czech,
but I don't think I've ever heard it in English, hence the remark.

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richwalinsky
EU countries decided to create the directive, and then implemented this while
it was in force. It is slovak government

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runn1ng
I cannot find any source in Slovakian language (I can understand it). Does
anyone have that?

~~~
mormegil
See links at the bottom of
[http://www.eisionline.org/index.php/sk/projekty-m-2/ochrana-...](http://www.eisionline.org/index.php/sk/projekty-m-2/ochrana-
sukromia/108-ustavny-sud-sr-zrusil-plosne-sledovanie-obcanov)

~~~
runn1ng
Thanks!

