“Lawful interception – A market access barrier in the European Union”?

Abstract

This paper studies legal requirements across the European Union to implement technical and organizational capabilities to intercept and deliver content data to law enforcement authorities, arguing that a fragmentation of rules across EU Member States imposes market access barriers upon telecommunications providers. The aim of this paper is to raise awareness about discrepancy of lawful interception rules across the EU, which causes legal uncertainty and places burdensome requirements upon regulated entities such as OTT but also IoT connectivity and satellite service providers.The paper further argues that the EU has competencies to legislate on harmonization of lawful interception capability rules by specifying what types of telecommunications providers can be subject to those rules, address types of capabilities, determine whether Member States should be responsible to reimburse telecommunications providers with incurred costs; and finally, regulate on the ability to share or outsource capabilities with other providers or third-party vendors.The author doesn't address human rights or privacy considerations associated with exercising lawful interception, nor grounds on which lawful interception can be requested under national law, nor evidential admissibility of intercepted data.