Attorney-at-law Kristjan Tuul of law firm Namm has filed a new request concerning authorities obtaining the contents of individuals' email accounts from telecommunications and service providers without a legal basis or court authorization. This time, he submitted the request to the Prosecutor's Office.

In early June, Tuul initially submitted the same request to the Ministry of the Interior, which responded that it could not conduct an internal supervisory review and that it would be more appropriate to contact the Prosecutor's Office.

Tuul subsequently said that because the Ministry of the Interior had misunderstood the substance of his request and assessed the issues too narrowly, he submitted a new request to the ministry. However, the interior minister again recommended contacting the Office of the Prosecutor General.

Tuul's request was prompted in part by a court case in which Toomas Tamm, Küllike Namm and Kalev Kangur were charged with fraud. Both the district court and, later, the circuit court acquitted the defendants and the Supreme Court largely upheld the ruling. During the investigation, the Estonian Internal Security Service (ISS) also obtained the contents of suspect Tamm's email account from Telia for the years 2015 through 2018.

The Supreme Court subsequently ruled that investigative authorities do not have the right in criminal proceedings to demand the contents of a suspect's email account from a service provider without court authorization.

Tuul wrote in his letter to the Prosecutor's Office that evidence obtained in this manner had been ruled inadmissible in two criminal cases.

"The Supreme Court emphasized that there was no court authorization and that the service provider was required to hand over the entire contents of the email account, without limiting the scope of the request to the period covered by the suspicion or other relevant circumstances. Particularly noteworthy is the observation in paragraph 25 of the Supreme Court ruling that the criminal case materials contain indications that this was standard practice among investigative authorities," Tuul said.

"As a practicing attorney, I find it extremely concerning that final court rulings show that data concerning individuals' private lives and the confidentiality of their communications is being collected on a broad scale without a legal basis provided by law," Tuul added.

In his request to the Prosecutor's Office, Tuul wants to know, among other things, whether prosecutors were aware of a practice in pretrial proceedings of demanding the contents of email accounts from service providers without court authorization and whether the Prosecutor's Office considers the practice described in the Supreme Court ruling an isolated case or believes it may have been a more widely used investigative practice.

Tuul also wants answers as to whether, following the Supreme Court ruling or earlier court decisions, the Prosecutor's Office launched an internal review or issued guidance to investigative authorities and whether prosecutors have analyzed how many proceedings may have been affected by similar practices.

He also wants to know whether the Prosecutor's Office considers it necessary to review the legality of evidence collected previously in cases where email contents may have been obtained from service providers without court authorization and whether it has issued or plans to issue guidance on the conditions under which data may be requested from telecommunications and service providers.

In addition, he wants to know whether the Prosecutor's Office considers it necessary to initiate disciplinary proceedings or other reviews if a systemic unlawful practice is found to have occurred.

Tuul said, however, that the Prosecutor's Office cannot initiate an internal supervisory review of the ISS and that this must be done by the Ministry of the Interior.

He said that the state is not addressing the issue and does not want to take responsibility.

"The Ministry of Justice and Digital Affairs, which exercises administrative supervision over the Prosecutor's Office, has also been passive. Unfortunately, the law is flawed and the ministry does not exercise supervision over the Prosecutor's Office's activities in pretrial criminal proceedings. At the same time, the Prosecutor's Office Act stipulates that administrative supervision within the Prosecutor's Office is exercised by the prosecutor general. That is why the request was submitted to the prosecutor general," Tuul said.

Helen Uldrich, head of the Prosecutor's Office public relations department, told ERR that the request for clarification in question had been received and that, under the law, the Prosecutor's Office must respond and formulate its position within 15 days at the latest.

"Prosecutors are currently still reviewing the material," she said.

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