Do mobile operators maintain confidentiality?

The known situation related to the blockade of the telecommunications of the chairman of the Azerbaijan Popular Front Party (APFP), Ali Karimli, clearly reveals some points in the assessment of the latest information.

What do we observe when we read and analyze the statement of Azercell Telecom LLC, which answered the questions[1] of Turan News Agency?

In the first sentence, the statement says: “Azercell Telecom LLC, guided by the current legislation on telecommunications, treats all its customers equally and does not discriminate between them on the basis of their political views.”

And in the second sentence, it says: “The company pays special attention to the confidentiality of customer data and any information about the number used by any subscriber can not be provided to third parties, except as provided by law.”

In both sentences, it is clear from the emphasis in the sentences what the event actually is. The emphasis in the first sentence is "… guided by the current legislation on telecommunications", and the emphasis in the second sentence is "… except as provided by law".

What do these emphasises actually say?

The essence of the issue is hidden in Article 39 of the Law[2] of the Republic of Azerbaijan on Telecommunications, adopted on June 14, 2005.

It is this article that regulates the interaction of all operators and providers operating in the country, including Azercell Telecom LLC, with the bodies carrying out search operations, intelligence and counter-intelligence activities.

Paragraph 1 of the article states: “operators, providers are obliged to create conditions for conducting search operations, intelligence and counter-intelligence activities in accordance with the law; to provide telecommunications networks with additional technical means in accordance with the conditions established by the relevant executive authority; to resolve organizational issues; and to keep secret the methods used in conducting these events.”

Paragraph 2 of the article states: "The operator, the provider shall be liable for the violation of these requirements in accordance with the law."

The article clearly expresses that the mobile operator is obliged to provide telecommunications networks with additional technical means in accordance with the conditions established by the relevant executive authority, as well as to keep it secret.

This can be clearly seen in the first two sentences of Azercell's statement.

1.       Azercell states in the first sentence that the equality of customers, political affiliation does not matter to it; however, the requirements of the law on telecommunications are more guiding requirements;

2.       Azercell attaches great importance to customer confidentiality; however, except as provided by law. I provide information during search operations and I am obliged to keep it secret.

What is the relevant executive authority mentioned in Article 39 of the Law?

Paragraph 1.12 of the Decree[3] of the President of the Republic of Azerbaijan on the application of the Law of the Republic of Azerbaijan on Telecommunications № 277 dated August 9, 2005, instructs to the Cabinet of Ministers to prepare and submit proposals on the executive body exercising the powers of the "relevant executive authority" provided for in Article 39.1 of this Law to the President of the Republic of Azerbaijan within 2 months.

On September 27, 2006 (13 months later), Paragraph 2 of the Decree[4] of the President of the Republic of Azerbaijan on additional measures in connection with the implementation of the Decree of the President of the Republic of Azerbaijan № 277 dated August 9, 2005, on the application of the Law of the Republic of Azerbaijan on Telecommunications states that the powers of the “relevant executive authority” provided for in Article 39.1 of the Law of the Republic of Azerbaijan on Telecommunications shall be exercised by the State Security Service of the Republic of Azerbaijan, in the part related to the powers of the Ministry of Internal Affairs of the Azerbaijan Republic, it shall be exercised by the Special State Protection Service of the Republic of Azerbaijan in coordination with the Ministry of Internal Affairs of the Azerbaijan Republic.

It should be emphasized that Article 39 of the Law on Telecommunications, which gives powers directly to the executive branch without the condition of judicial control, creates conditions for mass violations of human rights and freedoms. The famous MNS operation in 2015 is one of the endless examples of this.

I must note that before the famous MNS operation, these powers were given to the MNS. However, the words “in the part related to the powers of the Ministry of Internal Affairs of the Azerbaijan Republic, it shall be exercised by the Special State Protection Service of the Republic of Azerbaijan in coordination with the Ministry of Internal Affairs of the Azerbaijan Republic” were added to the Decree by the Decree of the President of the Republic of Azerbaijan № 640 dated October 2, 2015.[5] By the Decree of the President of the Republic of Azerbaijan № 1275 dated March 3, 2017 (17 months after the abolition of the Ministry), the words “Ministry of National Security” were replaced with the words “State Security Service”.[6]

The Statute of the Special State Protection Service, established by the President of the Republic of Azerbaijan on December 26, 2012, has not been disseminated and kept secret, despite the explicit requirement of the Constitutional Law on Normative Legal Acts.

This body was abolished by the Decree[7] of the President of the Republic of Azerbaijan dated March 16, 2020, and three different bodies were established.

1.       Security Service of the President of the Republic of Azerbaijan[8];

2.       State Service for Special Communications and Information Security of the Republic of Azerbaijan;

3.       State Agency for Protection of Strategic Objects of the Republic of Azerbaijan.

Paragraph 3 of the decree gives 2 months (until May 16, 2020) for the preparation of the Regulations of these bodies. However, Paragraph 4 stipulates that until the Regulations are ready, these bodies shall ensure the implementation of the duties provided for in the relevant sections of the “Regulations on the Special State Protection Service of the Republic of Azerbaijan” approved by Decree № 794 dated December 26, 2012.

The reason for the need for "search operations" in connection with any subscriber receiving services from Azercell Telecom LLC was not directly related to the SSS, and if it belongs to the Ministry of Internal Affairs, then, with the consent of the MIA, it must be carried out by the Special State Protection Service of the Republic of Azerbaijan.

Of course, there is a legal gap here. The Special State Protection Service is the main body implementing Article 39 of the Law on Telecommunications in matters within the powers of the Ministry of Internal Affairs. The work of the Ministry of Internal Affairs here is only limited to the consent. No amendments were made to the Decree of the President of the Republic of Azerbaijan on the application of the Law of the Republic of Azerbaijan on Telecommunications dated September 27, 2006, which provides for the implementation of the law. This authority still appears in the abolished Special State Protection Service. However, this Decree should have been amended and the existing authority should have been transferred to the State Service for Special Communications and Information Security. Because the restriction of rights and freedoms is possible only by law and on legitimate grounds.

The incident is legally problematic, as well as occurs without judicial control. This leads to greater arbitrariness. Bodies act arbitrarily, violate the principle of equality, and discriminate against individuals on the basis of their political affiliation. In short, rights are violated illegally and discriminatively.

[1] http://www.turan.az/ext/news/2020/4/free/politics%20news/az/123503.htm

[2] http://www.e-qanun.az/framework/10663

[3] http://www.e-qanun.az/framework/10665

[4] http://www.e-qanun.az/framework/12117

[5] http://e-qanun.az/framework/30841

[6] http://e-qanun.az/framework/34981

[7] https://president.az/articles/36183

[8] https://dmx.gov.az/page/98/prezidentin-tehlukesizlik-xidmeti

Alesker Mammadli