UPDATED: March 2017 | SOURCE: Telenor Group/Hogan Lovells Legal Advisory
Provision of Real-time Lawful Interception Assistance
NATIONAL SECURITY SERVICE ACT
Act 125 of 1995 on the National Security Services (the “National Security Service Act”); Act 34 of 1994 on the police (the “Police Act”) and Act 19 of 1998 on Criminal Proceedings (the “Criminal Proceedings Act”) give the competent court, and in the case of the intelligence agencies under the National Security Service Act, the Minister of Justice, the power to authorise the interception of a person’s communications following an application made by the relevant intelligence agency or law enforcement agency (“LEA”).
ELECTRONIC COMMUNICATIONS ACT
Under s.92(1) of Act 100 of 2003 on Electronic Communications (the “Electronic Communications Act”), electronic communications service providers in Hungary are required to cooperate with organisations authorised to conduct covert investigations and to use their facilities in their electronic communications systems so as not to prevent or block covert investigations, e.g. interceptions.
In addition under s.92(2) of the Electronic Communications Act, at the written request of the National Security Services, electronic communications service providers are required to conclude an agreement with the National Security Services. Under s.17(2) of the Government decree No. 180/2004 on the rules of cooperation between electronic communication service providers and authorities authorised for secret data collection (the “Government Decree on Cooperation”) any such agreement should be concluded within 60 days after receipt of the written request of the National Security Services. The agreement should address the application of the means and methods of covert investigation operations.
CRIMINAL PROCEEDING ACT
Under s.202(6) of the Criminal Proceedings Act, interception by LEAs may only be conducted if it reasonably appears that obtaining evidence by other means would be unlikely to succeed or would involve unreasonable difficulties, and there is probable cause to believe that evidence can be obtained by the interception.
Under s.71 of the Police Act and s.203 of the Criminal Proceedings Act, the competent court can issue an order for interception. Under s.57-58 of National Security Services Act, the competent court or the Minister of Justice, can issue an order for interception.
GOVERNMENT DECREE ON COOPERATION
The Electronic Communications Act and the Government Decree on Cooperation requires electronic communications service providers to cooperate with LEAs and intelligence agencies in relation to covert investigations and set up and maintain interception equipment.
Under s.3(a) of the Government Decree on Cooperation, electronic communications service providers must ensure, among other things, that all conditions necessary for the implementation of tools in relation to covert investigation operations are satisfied; for example, through the provision of a lockup room where the necessary equipment can be placed, non-stop technical assistance, if required, etc.
Under s.3(3) and s.6(3) of the Government Decree on Cooperation, LEAs and intelligence agencies can install technical devices so that they have direct access to the networks of electronic communications service providers, without the personal assistance of the employees of the service providers
Disclosure of Communications Data
ELECTRONIC COMMUNICATION ACT
Under s.157(10) of the Electronic Communications Act, intelligence agencies, courts, public prosecutors and investigation authorities including the police and (in relation to certain criminal offenses) the National Tax and Customs Authority, have the power to acquire the metadata relating to customer communications including traffic data, IMEI number, service use information and subscriber information, but not the content of the communications. Under s.157(8)-(9) and (11) of the Electronic Communications Act a further range of authorities, including the Hungarian Competition Authority, the Hungarian National Bank (the “MNB”) acting as financial supervisory authority, and the Consumer Protection Authority are entitled to request metadata but only if such authorities are conducting investigations in relation to suspicious activities listed in these sections.
Under s.3/B and 13/B(1) of Act 108 of 2001 on electronic commerce and information society services (“E-Commerce Act”), if an application service provider offers encrypted services (other than end-to-end encryption), it is required to disclose the content of the communication or conversation to the authority carrying out any covert investigation, if so requested, and must store the metadata of the communication or conversation for 1 year and must disclose it to the authority carrying out any covert investigation, if so requested.
“Application service provider” is defined as a natural person or legal entity who or which provides access to software or hardware through an electronic communication network, provides a software application or any related services through a specific software or web portal to multiple users, limited or unlimited in time, for monthly or use-based consideration or for free.
Under s.157(8) of the Electronic Communications Act, in the case of certain financial regulatory proceedings conducted by the MNB acting as financial supervisory authority, electronic communications service providers may be requested to disclose to the MNB certain data such as the subscriber’s name, address, telephone number or other identifier of the subscriber terminal, call logs or details of other services provided.
Under s.157(8a) of the Electronic Communications Act, in the case of certain anti-trust proceedings or other proceedings relating to unfair business-to-consumer commercial practice, conducted by the Hungarian Competition Authority (the “HCA”), electronic communications service providers may be requested to disclose to the HCA certain data such as the subscriber’s name, address, telephone number or other identifier of the subscriber terminal, call logs or details of other services provided.
Furthermore, if the agreement or concerted practice aims, directly or indirectly, at price fixing, sharing the market or fixing quotas, the HCA may also require the disclosure of further data such as the IMEI number of the mobile telephone used, identification data regarding the network and cell providing the service in the case of mobile telephone services; or in the case of IP networks, the identifiers used.
Under s.71 of the Police Act and s.203 of the Criminal Proceedings Act, the competent court can make an order for interception, while under s.57-58 of National Security Services Act, the competent court or the minister of justice can issue an order for the interception (including to granting access to the content of stored customer communications (e.g. voicemail)).
Under s.68 of the Police Act, if a request is made by the police in relation to serious crimes (as is defined under s.68), the supply of data cannot be refused.
Under s.11(5) of the National Securities Services Act, the competent minister investigates complaints made in relation to the activities of the intelligence agencies.
In addition, lawful process and transfer of personal data is also monitored by the National Authority for Data Protection and Freedom of Information, the president of whom hears and investigates complaints about any alleged misuse of personal data.
National Security and Emergency Powers
Except as already outlined in this report, government agencies do not have any other legal authority to invoke special powers in relation to access to a communication service provider’s customer data and/or network on the grounds of national security.
ELECTRONIC COMMUNICATIONS ACT
Under s.37(1) of the Electronic Communications Act, for the protection of human lives, health, physical integrity, or for the protection of the environment, public safety and public policy, or for the prevention of dangers exposing significant threats to a broad range of users, or that directly jeopardize the operations of other service providers and users, the National Media and Info-communications Authority (the “NMHH”) may pass a resolution on the prohibition of the provision of any service or the use of radio frequencies.
Oversight of the Use of Powers
No appeal can be submitted against the relevant resolution of the NMHH in relation to the prohibition of the provision of any service or the use of radio frequencies, however, judicial review of the resolution can be requested from the competent court.
Interception is subject to the prior, or in urgent cases the subsequent, approval of the court/minister. No appeal can be submitted against an order of the court/minister unless the interception resolution is in relation to an ongoing investigation under the Criminal Proceedings Act.
Law stated as of 21 February 2017