Governments across Europe are implementing new rules to require
surveillance assistance and the retention of data by ISPs and
telcos for purposes of law enforcement. One hotly contested issue
is the question of who should pay the associated costs. And many
ISPs will be envious of a recent decision by Austria's Federal
Constitutional Court.22 Apr 2003
The decision says that the Austrian law that compels the country's telcos and ISPs to implement retention measures at their own expense is unconstitutional.
The Telekommunikationsgesetz (Telecommunications Law) states that providers should receive an adequate refund for their expenses for State-ordered wiretappings, but that they do not get any refund for the significant costs to install the equipment in the first place.
The court ruled that a regulation that imposes a significant burden on third parties may only be justified in exceptional circumstances. It added that, the fact that technical requirements may be changed every year and are only determined by secondary legislation does not meet the constitutional principle of clarity and proportionality.
Accordingly, the Austrian state must bear the implementation expenses unless it can show exceptional circumstances for burdening the private sector with them.