Despite changes to the text, the latest version of the amendments to the Electronic Communications Act (ECA), put forward by the Interior Ministry, could still be in conflict with the Bulgarian constitution.

At a hearing on February 3 2010, Parliament's internal security and public order committee passed some of the proposed changes to the amendments, but left in the possibility for police to use access to communication data for crimes that carry sentences of less than five years, in violation of the constitution, Bulgarian-language broadcaster mediapool.bg said.

Crimes that carry a sentence of less than five years, which are included in the scope of the ECA include causing death by negligence, threatening an officer, threat of murder, soliciting prostitution and providing premises for prostitution, acquisition or distribution of pornographic material, vote-buying, illegal border crossings, soliciting investigators, judges and prosecutors to violate their administrative or legal obligations, computer crime, money laundering, organising gambling and conducting banking, insurance and other financial transactions without authorisation.

The committee did exclude infringements of copyright and related rights from the list amid fears that the ECA would be used on anyone who has used a BitTorrent tracker, Bulgarian-language daily Dnevnik quoted unnamed MPs as saying. The ECA would not help in uncovering copyrights violations, committee members said.

For much of the remaining scope under these amendments, however, current Bulgarian law envisions imprisonment of up to two years, mediapool.bg said. Under Bulgarian constitution, the protection of private communication can only be lifted for serious crimes which carry a minimum jail term of five years.

Mobile phone operators would have to provide requested communication data within 72 hours instead of the two hours, as the Interior Ministry had asked initially.

The Interior Minister, or his representative, would have the right to set a different deadline, shorter or longer, in exceptional cases and depending on the severity of the case.

Mediapool.bg quoted Deputy Interior Minister Veselin Vouchkov as saying that 72-hour deadline did not inhibit the work of the police, leaving mediapool.bg to wonder why the ministry had demanded data to be delivered within two hours in the first place.

Fines for non-compliance with that deadline would range between 10 000 and 100 000 leva, instead of the original 100 to 300 000 leva. Fines for abuse of access to the communication data were capped at 5000 leva.

Operators would have to store communication data for a period of one year. Any data that was accessed by the Interior Ministry would be stored for a period of six months, after which both the data and the request to access the data were to be destroyed if the data was not used in an active investigation or court case. Destruction of data would be performed by a three-member committee within the Interior Minsitry.

Citizens were not granted the right to appeal with the committee that was to oversee the use of communication data by the Interior Ministry.

Alexandar Kashumov, head of the legal team at the Access to Information Programme, was critical of the scope of crimes under the law, especially the inclusion of crimes that were not serious crimes as defined by the law. 

At the same time, he considered the changes a major step forward, mediapool.bg said. According to Kashumov, the obligation for the ministry to report use of the ECA to Parliament on an annual basis was a good idea.