Lawyer seeks oversight of email evidence collection

Attorney Kristjan Tuul has asked Estonia’s Prosecutor’s Office to investigate whether investigators unlawfully obtained people’s email contents from communications and service providers without a legal basis or court approval, ERR reported.

Tuul, a sworn attorney at Namm law firm, initially submitted the request to the Ministry of the Interior in early June. The ministry replied that it could not conduct administrative oversight and suggested that he contact the Prosecutor’s Office instead.

Tuul said he later submitted a new request to the ministry because he believed it had misunderstood the substance of his complaint and assessed the issues too narrowly. The minister nevertheless again advised him to turn to the State Prosecutor’s Office.

Tuul’s request was partly prompted by a criminal case in which Toomas Tamme, Küllike Namm and Kalev Kangur were charged with fraud. Both the county court and the circuit court acquitted the defendants, and the Supreme Court left the decision largely unchanged.

During the investigation, the Internal Security Service obtained from telecommunications company Telia the contents of suspect Tamme’s email account from 2015 to 2018.

The Supreme Court found that investigative authorities had no right in criminal proceedings to demand the contents of a suspect’s email account from a service provider without court approval. Tuul said the practice had been deemed inadmissible evidence in two criminal cases.

“The Supreme Court stressed that there was no court approval and that the entire contents of the email account had been requested from the service provider, without limiting the scope of the request to the period covered by the suspicion or other relevant circumstances,” Tuul wrote.

He also highlighted the Supreme Court’s observation that the criminal case materials contained indications that the practice had been routine among investigative authorities.

“As a practising lawyer, I consider it extremely alarming that final court decisions show that data concerning people’s private lives and the confidentiality of their communications was collected extensively and without a legal basis,” Tuul said.

Tuul wants the Prosecutor’s Office to say whether it knew that investigators had obtained email contents from service providers without court approval during pretrial proceedings. He also asks whether it considers the practice described by the Supreme Court an isolated incident or believes it may have been more widely used.

He further asks whether the Prosecutor’s Office launched an internal review or issued instructions to investigative authorities after the Supreme Court’s ruling or earlier court decisions, and whether it has assessed how many proceedings may have been affected.

Tuul also wants to know whether the legality of previously collected evidence should be reviewed in cases where email contents may have been obtained from service providers without court approval, and whether the Prosecutor’s Office has issued or plans to issue guidance on the conditions for requesting data from communications and service providers.

He asks whether disciplinary or other review proceedings should be launched if a systematic unlawful practice is found.

Tuul said the Prosecutor’s Office cannot initiate administrative oversight of the Internal Security Service, which must be conducted by the Ministry of the Interior. He said the state was not addressing the issue and did not want to accept responsibility.

Tuul also said the Ministry of Justice and Digital Affairs, which exercises administrative oversight over the Prosecutor’s Office, was inactive.