Legal experts say “Lex Nokia” violates constitution
Legal experts interviewed by Parliament’s Constitutional Law Committee say that the government’s proposal for changing the law on data protection for electronic communications violates the Finnish constitution.
The committee stated last week that the bill for an amendment to the Act on Data Protection of Electronic Communications is not unconstitutional, and that it can be passed as a regular law, and does not require the procedure of a constitutional amendment.
The bill would allow employers to investigate the log data of employees’ e-mails, if the company has reason to suspect that corporate secrets are leaking out of the company or that the employer’s communication networks are being misused. The employer would not be allowed to read the content of the messages themselves, however.
“Nokia triumphed over the Finnish constitution. The influence of business dictated this proposal. The fundamental rights of the citizens were put in second place”, says Tuomas Ojanen, Professor of Constitutional Law at the University of Helsinki. He was one of those appearing before the committee.
Helsingin Sanomat asked all eight legal experts who appeared before the Constitutional Law Committee to discuss the matter. One of them, Professor Kaarlo Tuori, refused to answer. Earlier, in his written statement to the committee, Tuori put forward a few proposals for changes.
Jukka Kemppinen, Professor of Information and Technology Law at Lappeenranta Technical University, expressed surprise at how the committee shrugged off the views of the legal experts that it heard.
“The bill should have been handled as a constitutional amendment. It is also not clear enough, which leaves employers too much room to manoeuvre. The views of experts were pushed aside in the statement of the Constitutional Law committee”, Kemppinen says.
Many legal experts doubt that monitoring employee e-mail log data would prevent company secrets from being leaked.
The Constitutional Law Committee indicates in its statement, that the economic significance of corporate secrets is so great that it is appropriate to restrict fundamental rights in order to safeguard confidentiality.
“This is a clear weakening of the confidentiality of communications. The proposal significantly interferes with key fundamental rights and rights of the individual for reasons that I cannot accept”, says Teuvo Pohjolainen, Professor of Public Law at the University of Joensuu.
Professor Mikael Hildén, meanwhile, wonders why the committee does pays no heed to the fact that for the first time, authority to significantly limit fundamental rights is being given to private companies, rather than public authorities.
He feels that the bill is not in accordance with the constitutional law system, in light of the practice of the committee so far.
“If the perceived problem is that the law on coercive measures does not give officials sufficient access to e-mail log data, the law on coercive measures should be expanded, and the collection of log data of criminal suspects should be left exclusively in the hands of the authorities; the rights should not be given to corporations”, Hildén says.
Under the law on coercive measures, police can get a court’s permission to use log data if the maximum punishment for a suspected crime is at least four years imprisonment. The maximum sentence for violating corporate secrecy is two years imprisonment.
“The core problem is that the employer would decide when corporate secrets are involved, and what constitutes a well-founded reason to suspect a leak of information. The authority of an employer would simply be too broad. It is also problematic that an employer would not have to get any authorisation from anyone, as officials do”, says Veli-Pekka Viljanen, Professor of Constitutional Law at the University of Turku.
If Parliament passes the bill into law, Professor Antti Saarenpää, Director of the Institute of Legal Informatics at the University of Lapland in Rovaniemi, warns that Finland’s reputation as a country under the rule of law, which respects the rights of the individual, could be in danger.
“In Finland, employees have a justifiably strong protection of privacy at work. Finland’s reputation is going here”, Saarenpää said.
The professors also wondered why the detailed additions that the committee had made to the government’s proposal have not been set as conditions for approving the law. Including the additions is now being considered by the Parliamentary Transport and Communications Committee.
“Events such as these raise the question of what the role of the Constitutional Law Committee is, if economic and political interests get the advantage over fundamental rights and human rights”, Professor Ojanen says.
Under the Finnish Constitution, the role of the Constitutional Law Committee is to give statements on the constitutionality of proposed legislation and other matters, and on their implications for international human rights agreements.
“Under the European concept of law, this proposal would weaken fundamental rights too much”, says Olli Mäienpää, Professor of Administrative Law at the University of Helsinki.
Previously in HS International Edition:
”Lex Nokia” gets blessing from Constitutional Law Committee (14.11.2008)
Nokia snooped on employee e-mail communications in 2005 (9.6.2008)
Prosecutor: Nokia dug up e-mails in effort to plug information leaks in 2000-2001 (18.4.2006)