Proposal to Parliament for amending the constitutional provision on the secrecy of confidential communications
The Government proposes that the Constitution be amended so that provisions on limitations of the secrecy of confidential communications that are essential for protecting national security could be laid down in ordinary law if the necessary preconditions are met. In practice, the amendment would allow the enactment of legislation on intelligence gathering powers.
The proposal for amending the Constitution and the proposals for legislation concerning civilian and military intelligence as well as the oversight of the intelligence gathering activities connected with the updating of the intelligence legislation were submitted to Parliament today.
Under the new grounds for limitation, intelligence could be obtained for the purpose of protecting national security
Under the proposal, in order to identify and prevent threats potentially directed at Finland, it is necessary to obtain intelligence on military operations and other such activities that pose a serious threat to national security. The operations subject to intelligence gathering would not necessarily be punishable under the Finnish law or have not proceeded to the point where a concrete and individualised suspicion of a crime could be directed at them. Intelligence is needed on developments in the security environment and activities seriously threatening the democratic system of government and basic functions of society, such as terrorism-related activities, violent radicalisation or the activities of foreign intelligence services.
Under the proposal, intelligence on military operations and other such activities that seriously threaten national security must also be obtained through such means that may interfere with the secrecy of confidential communications.
Under the Constitution of Finland, the secrecy of correspondence, telephony and other confidential communications is inviolable. Under the existing constitutional wording, provisions concerning limitations of the secrecy of confidential communications which are necessary in the investigation of crimes that endanger the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an act.
In accordance with the wording of the Constitution and its current interpretation, provisions on limiting the secrecy of communications for other purposes, such as the protection of national security or the threats to it may not be laid down by law. In order to allow this, it is proposed that provisions on new permissible grounds for the limitation of secrecy of confidential communications should be added to the Constitution.
Under the proposal, the secrecy of communications could be limited if this is necessary for ‘obtaining information about military operations or other such activities that seriously threaten national security’.
For the purposes of the provision, ‘military operations’ would mean both governmental and non-governmental operations involving organised military units or military force. The intelligence gathering on military operations would include surveying of external military threats directed at Finland.
For the purposes of the provision, ‘activities that seriously threaten national security’ would mean activities that threaten the democratic system of government, basic functions of society, lives or health of a large number of people or international peace and security. However, it would be required that the activities are connected with Finland and specifically threaten the national security of Finland.
Under the amendment, provisions on intelligence gathering powers interfering with the secrecy of communications could be laid down in ordinary law. Under the provision, introducing these powers would be subject to significant restrictions. The threat to national security should be of serious nature. The powers interfering with the secrecy of communications should also be necessary for obtaining the intelligence. In other words, the threshold for obtaining intelligence would be high.
The phrase ‘investigation of crime’ in the current provision on the secrecy of confidential communications would be replaced with ‘combating of crime’, which would cover the prevention, uncovering and investigation of crime. The new wording would be in accordance with the generally accepted interpretation of the expression but would not change its content.
General surveillance of telecommunications would not be possible
Under the necessity requirement contained in the Constitution, the measures interfering with the secrecy of confidential communications must be as specific as possible. It is emphasised in the proposal that the general preconditions for limiting fundamental rights applied under the current interpretation practice would also be applied in the future.
This means that under the new provisions, no legislation on general and all-encompassing telecommunications surveillance could be introduced. In the ordinary legislation, the intelligence gathering powers must be specified and the preconditions for limiting fundamental rights, the human rights obligations, and the EU law must be complied with. Adequate legal protection and oversight arrangements must also be ensured.
The proposal for the amendment should be consider as an urgent matter
The Government proposes that Parliament should consider the amendment to the Constitution as an urgent matter. In the Government's view, the weakening of Finland’s security situation and the need to prepare for activities threatening the national security of Finland have created an exceptional situation in which there is an immediate need to urgently amend the Constitution.
If the normal procedure for constitutional enactment is applied, the provisions on the new powers of the intelligence authorities may only enter into force in early 2020. If the proposal is declared urgent, the new provisions might already enter into force at the end of 2018. Under the Government proposal, should the consideration of the proposals in Parliament continue until the end of the current electoral term (until spring 2019), there would be less need to declare them urgent.
Tuula Majuri, Director of Legislative Affairs, tel. +358 2951 50280 and
Anu Mutanen, Senior Specialist, tel. +358 2951 50311
email: [email protected]