Swedish ombudsman rules that cell phones should not be tracked when not engaged in calls

03 December 2008

Henrik Nilsson

A new decision by the Swedish Chancellor of Justice, an independent ombudsman, limits the circumstances when location data on phones can be collected for law enforcement purposes.  The information can only be collected when the phone is in use, i.e. not just switched on.

The Chancellor of Justice issued a finding on 15 August 2008 impacting the work of legal enforcement agencies. The finding sets out limitations on the rights of the police and the prosecution service to request disclosure of positioning or localisation data from telecom operators when engaged in tele-surveillance.

The decision covers localisation data derived from mobile phones, where the data collected is unrelated to a call or other use of the device (other than leaving it on). The Chancellor of Justice decided that positioning data (i.e. information on where a cellphone is located at any given time), when the phone is turned on but not used for conversation or sending/receiving an electronic message, falls outside of the scope of legal interception. The matter was brought to the Chancellor’s attention following a complaint by one of Sweden’s leading IT lawyers, in his capacity as a court-appointed public ombudsman monitoring court decisions regarding legal interception.

Chapter 27, Section 19 of the Swedish Code of Judicial Procedure authorises the use of “secret tele-surveillance” in certain types of investigation. “Secret tele-surveillance” is defined in the official translation as “the covert reporting of telecommunications conveyed to or from a certain telecommunications dispatched or ordered to or from a certain telecommunications address or that such a message is prevented from reaching its destination”. It follows that while secret tele-surveillance may be carried out when a “telecommunication” is conveyed to or from a cell-phone, the statute does not cover the collection of positioning data in the absence of a “telecommunication”.

In accordance with Chapter 6, Section 20 of the Swedish Electronic Communications Act, Telecom operators are bound by statutory secrecy obligations regarding “information relating to a particular electronic message”.

Under Chapter 6, Section 22 of the Electronic Communications Act, operators are obliged to give certain information to the police and the public prosecutor if they request it. The only information that can be disclosed concerns subscription, the contents of a message and information relating to a particular electronic message.  Legal authorities have no right to request any other information from the telecoms operator.

Chapter 6, Section 9 of the Electronic Communications Act states that: “Positioning data that is not traffic data and which relates to users who are natural persons or subscribers may only be processed after it has been prevented from being identifiable or the user or subscriber has given his or her consent to the processing.”  As there are no exceptions to this rule, positioning data cannot be processed unless the user consents to it.

The Chancellor of Justice stresses in his finding that since the telecom operator is not allowed to give such information it would be wrong for the police to ask for it. He also points out that operators, due to their professional secrecy, cannot give information to the authorities on their own initiative. The Chancellor of Justice ends with the remark that whilst it is probably possible for the police and the public prosecutor to obtain information regarding the position of a cell-phone through confiscation of phones or through discovery, he recommends that legal interception of localisation data should be made possible by amending relevant legislation.

The legal analysis of the finding shows how the issue of legal interception of localisation data has been discussed in several government reports and preparatory works over the last decade. The necessary amendments have even been proposed by previous governments, though never resulting in legislation. Given the awareness in the legal community on this issue, it is remarkable that unauthorised legal interception appears to have continued to be practised by police authorities with the co-operation of the telecom operators.

The present Minister of Justice, Ms Beatrice Ask, has promised swift legislative action in statements to the press to amend the Code of Judicial Procedure to permit the interception.