Legal expert: Anonymous pre-paid SIM card ban could violate privacy rights

While Ministry of Economic Affairs and Communications plans to phase out the sale of anonymous prepaid mobile SIM cards does not break any laws of the land, the move would violate individual rights, one lawyer says.

Lecturer in constitutional law at the University of Tartu and former presidential adviser Paloma Krõõt Tupay says that the move would: "No doubt restrict individual rights, but the restrictions in themselves would not necessarily in and of themselves infringe any laws."

The issue is multi-faceted, she said, crossing over into questions of data protection, personal privacy and also security, complicated by potential discrepancies between domestic and EU law. 

The economics affairs ministry wants to install requirements for purchasers of pre-paid SIM cards, available at kiosks and other stores for a few euros a throw, to verify their identities via the Estonian ID card, mobile ID or the SMART app. 

The ministry cites concerns about the widespread use of such services for criminal activities using "burner" phones on a temporary basis, and says much of western Europe, as well as countries further afield such as Pakistan, have already put in place similar requirements. 

Tupay said that the state should take the broader view on the issue rather than just the question of non-contract SIM cards in isolation, noting that there are equally many European countries where the products are still available on sale – some of which Estonian citizens and residents could travel to pending travel restrictions, and purchase SIM cards there. 

Tupay also pointed to a precedent in Germany, where an MEP has taken the issue to the European Court of Human Rights (ECHR) but had also met with a conundrum. 

"The [ECHR] court said that 'yes, such regulations do curb the right to privacy', but at the same time the corresponding domestic German law did not have any component which could point to human rights violations...with this the court could also not state that a right to anonymous communications existed fundamentally," she said.

Tupay conceded that not only criminal, but many terrorist attacks have made use of anonymous mobile SIMs, but that this was a security matter. 

"The question is this: To what extent should privacy be guaranteed, what are the options open to people to protect their privacy and what may be done with data going forward – where and for how long it can be stored etc." 

The ministry's draft regulations contained an explanatory memorandum which, in addition to noting criminal use of prepaid SIM cards, sees secure messenger apps like WhatsApp and Viber, as well as the Estonian-founded Skype VOIP software, as on the same level as more traditional phone calling and which would require the same degree of ID verification, as well as the ability to make emergency phone calls via such services. 


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Editor: Andrew Whyte

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