II. Surveillance policies
National security, government surveillance and law enforcement
Wiretapping, access to, and interception of communications
The Criminal Code regulates wiretapping.1 In 2001, the Danish Parliament adopted an amendment to the Act on Administration of Justice which increased the police surveillance mandate by allowing access to a list of all active mobile phones near the scene of a crime at the time the crime was committed. This law was approved by the Parliament in June 2001.
Statistical data on the interception of communications by the police show that the courts approved the vast majority of requests prior to the interception. The majority of requests were related to drug crimes (943 requests); some were related to human trafficking (Section 125 (a) of the Criminal Code) and violation of the Aliens Act (17 requests); most requests involved telephone tapping (2,658); and a significant number (1,823) dealt with the "requiring of information from telecommunication providers (Teleoplysning)."2
An act on the activities of the police was adopted in 2004,3 establishing a common foundation for the work of the police. The act regulates procedures for the use of force, and for police interception and investigations, which are not regulated by other legislation. One issue, which has been criticised in relation to this act, is the lack of regulation regarding the use of electronic tracking devices on vehicles as a means of police surveillance.4
National security legislation
On 8 June 2006, an Act amending the Administration of Justice Act, the Act Prohibiting Video Surveillance etc., and the Act on Air Traffic (Strengthening of the efforts to fight terrorism etc.) was adopted in Parliament (Act No. 542 of 8 June 2006).5 The amendment to the Administration of Justice Act gives the Police Intelligence Service increased powers to exchange information with the Defence Intelligence Service and to collect information from other public authorities, e.g. hospitals, schools, libraries, social services etc. without a court order. The amendment of the Act Prohibiting Video Surveillance gives the police increased powers to demand that public offices and private parties install and conduct video surveillance. The amendment of the Air Traffic Act obliges airline companies to register and keep data on passengers and crews for one year and to provide the Police Intelligence Service with electronic access to the data without a court order.
In 2006 the government decided not to propose legislation concerning phone scanning. The report, entitled "Danish society's initiatives against and preparedness for terror", was prepared in October 2005 and contained a recommendation that it be made legal for police to scan the contents of telecommunications within a defined area. The Standing Committee on Administration of Criminal Justice delivered its remarks on the recommendation in September 2006. Among its conclusions, the Committee found that phone scanning amounts to a particularly serious intrusion into the secrecy of correspondence, since this measure would also entail sweeping access to communication among individuals who are not suspected of any criminal wrongdoing. The Police Intelligence Service was informed that the Committee had established that phone scanning can in fact be undertaken according to existing legislation based on the principle of emergency law. The government subsequently decided not to propose legislation on phone scanning.6
An administrative order from the Ministry of Justice followed the "anti-terrorism package", which was passed in June 2002 despite vocal opposition to increased data retention and the enlarged surveillance powers it embraced. The order extending the scope of Section 786(4) and Section 786(6) of the Administration of Justice Act was approved in September 2006, with an implementation deadline of September 2007.7 The ministerial order regulates in more detail the obligations of the Danish telecommunications providers (small, private Internet Service Providers, or ISPs, excluded), specifying how they must assist the Danish police to interfere with the secrecy of communication, what data should be retained, and how it should be done. During the drafting period the proposal was heavily criticised by ISPs, cooperative housing associations, and non-governmental organisations for being disproportionate and inconsistent, e.g. letting private entities store huge amounts of personal information while at the same time being easy to evade because of the many exemptions, such as libraries and universities not being included.
The administrative order further implements the EU directive on data retention, adopted February 2006. Danish telecommunications providers are obliged to retain data for one year for use in the investigation and prosecution of criminal offences.
National databases for law enforcement and security purposes
The Act concerning the Central DNA Profile Register.
National and international data disclosure agreements
On 18 June 2008 Act No. 479 of 18 June 2008 amending the Act concerning the Central DNA Profile Register, the Administration of Justice Act, and the Act concerning Registration of Vehicles was adopted by the Danish Parliament. It aims to transpose the so called EU "PrÃ¼m" Decision into the Danish legal order.8 Although approved in 2008, Act No. 479 of 18 June 2008 is not in to force yet. The amendment to the Act concerning the Central DNA-Profile Register gives EU member states' judicial authorities carrying out a criminal investigation the right to use electronic search to compare a DNA profile relevant to the investigation with DNA profiles in the Central-Profile Register. The amendment to the Administration of Justice Act gives the EU member states' judicial authorities carrying out criminal investigations the right to use electronic search to compare fingerprints relevant to the investigation with fingerprints in the Central Finger and Handprint Register. The amendment to the Act concerning Registration of Vehicles gives the Danish National Commissioner the right to give the judicial authorities of other EU member states access to carry out electronic searches of information from the Danish Vehicle Register that has been disclosed to the Danish Police for the purpose of a concrete criminal investigation or a concrete case about maintaining the public safety.
On 18 March 2009, Parliament adopted Act No. 188 of 2009 amending the Act on Processing of Personal Data.9 The amendment to the Act on Processing of Personal Data gives the Minister of Justice powers to lay down rules about protection of personal data processed in the framework of police and judicial cooperation in criminal matters in the EU.10 The Minister of Justice has not yet laid down such rules.
Also in 2001, Denmark amended its laws on search and seizure in accordance with its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and under pressure from the US software industry. The Administration of Justice Act now authorises physical searches for copyright infringement without "prior notification of the defendant if it is assumed that the notification would cause a risk of removal, destruction, or modification of objects, documents, information in computer systems, or anything else that are comprised by the petition for investigation."11
Following a complaint by IFPI (International Federation of the Phonographic Industry), on 4 February 2008 a Danish bailiff's court issued an injunction ordering Tele2, one of Denmark's major ISPs, to block access to The Pirate Bay's domains.12 IFPI asked the court for this injunction because most of the materials linked from The Pirate Bay are copyrighted and the exchange of these materials between Pirate Bay users is illegal.13 The injunction of the bailiff's court was subsequently upheld by the Danish High Court, and the decision by the Danish High Court was upheld by the Danish Supreme Court on 27 May 2010.14
No specific information has been provided under this section.
In June 2007 the Act on TV Surveillance15 and the PPD were amended.16 The amendments to the Act on TV Surveillance give private enterprises such as banks, gas stations, hotels, and shops extended powers to perform surveillance on areas related to their property. TV surveillance is defined as systematic and continuous surveillance of persons via remote-controlled or automatic cameras. The Act applies whether or not the pictures are stored or recorded. As a starting point, it is prohibited to establish TV surveillance where there is ordinary public traffic; however, exceptions are provided for in the act, e.g. for crime prevention. According to the Act there is a duty to inform people via signs that there is TV surveillance in the area. There is no longer a duty to notify the DPA prior to installing surveillance equipment.17 Both analog and digital TV surveillance is now covered by the PPD and the requirements in the PPD for storage and protection against the abuse of information must be observed. This was not the case before the amendment.18
Location privacy (GPS, mobile phones, location based services, etc.)
No specific information has been provided under this section.
Travel privacy (travel identification documents, biometrics, etc.) and border surveillance
The Danish National Police started issuing electronic passports in October 2006. These new, secure e-Passports feature a polycarbonate data page containing a contactless microprocessor chip running the highly secure operating system. The chip not only features the information identity already laser-engraved on the first page, but also contains the passport holder's digitised photograph.19
Danish citizens do not have an identification card but all citizens are provided with a Central Personal Registration (CPR)20 number, which is used to identify them in public registers. The information in the CPR register includes: name, address, municipality, prior addresses, place and date of birth, gender, nationality, membership information regarding the Danish National Church, information on family ties, guardians, information on marriage, and information on job positions. The Ministry of the Interior can hand over information for purposes of statistics or research. According to Section 38 of the Act, private entities can gain access to information21 on a larger group of persons identified individually.22 A condition for access is that the private entity has a legitimate purpose. According to the Act an individual can upon request be granted name and address protection lasting one year in relation to private entities.23
No specific information has been provided under this section.
According to the Aliens Act,24 immigration authorities may require DNA samples from applicants for residency or persons with whom the applicant claims family ties for the purposes of residency. In its October 2001 report, the United Nations Human Rights Committee expressed concern about the privacy implications of this practice and called on Denmark to ensure that such testing is used only when "necessary and appropriate to the determination of the family tie on which a residence permit is based."25
- 1. Criminal Code at Section 263.
- 2. The Danish Police, Politiets Ã…rstabel 2008 (Annual Statistical Report 2008), in Danish at http://www.politi.dk/NR/rdonlyres/807C15C7-901A-4347-9C33-7AAF2B1A6877/0...Ã…rstabel2008.pdf.
- 3. Lov 2004-06-09 nr. 444 om politiets virksomhed (Act on Police Activities No. 444 of 9 June 2004).
- 4. Christoffer Badse, The Use of Electronic Tracking Devices Should Be Regulated, (Pejling bÃ¸r reguleres) Lov og Ret No. 8, December 2004, (27-32).
- 5. L 217 (2005) Forslag til lov om Ã¦ndring af straffeloven, retsplejeloven og forskellige andre love (Draft Bill to Amend the Criminal Code, the Administration and Various other Laws).
- 6. The Ministry of Justice, Press statement of 21 December 2006.
- 7. Cfr. Administrative Order bkg 2006 No. 986.
- 8. Council Decision 2008/615/JHA, on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, 23 June 2008, OJ L 210, 6 August 2008, at 1â€“11, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:210:0001....
- 9. The purpose of the act is to implement Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.
- 10. Section 72(a) of the Act on Processing of Personal Data.
- 11. "Denmark Enacts Anti-Piracy Search and Seizure Law," Cluebot, 20 July 2001.
- 12. "Pirate Bay--Blocked in Denmark," EDRI-Gram, 13February 2008, available athttp://www.edri.org/edrigram/number6.3/piratebay-denmark .
- 13. Id.
- 14. Order of 27 May 2010 by the Danish Supreme Court (U 2010.2221 H).
- 15. Lov 2007-10-11 nr. 1190 om tv-overvÃ¥gning (Act No. 1190 of 11 October 2007 on TV Surveillance).
- 16. Lov 2007-06-06 nr. 519 om Ã¦ndring af lov om forbud mod tv-overvÃ¥gning m.v. og lov om behandling af personoplysninger â€“ Udvidelse af adgangen til tv-overvÃ¥gning og styrkelse af retsbeskyttelsen ved behandling af personoplysninger i forbindelse med tv-overvÃ¥gning â€“ (Act No. 519 of 6 June 2007 Amending the Law Prohibiting Television Surveillance, etc. and Act on Processing of Personal Data â€“ Extension of Access to Television Surveillance and Strengthening of Legal Protection in Handling Personal Information in Connection with CCTV).
- 17. Section 26(c) of the Act on Processing of Personal Data. See http://www.datatilsynet.dk/fileadmin/user_upload/dokumenter/Breve/Orient... (in Danish).
- 18. Cfr. Lovforslag af 28. februar 2007 om Ã¦ndring af lov om forbud mod tv-overvÃ¥gning etc. og lov om behandling af personoplysninger, pkt. 3.2.1 (LSF 162/2006) (Draft Bill No. 162 of 28 February 2007 Amending the Law Prohibiting Television Surveillance, etc., and Act on Processing of Personal Data, Section 3.2.1).
- 19. ePractice, eGovernment Factsheet â€“ Denmark â€“ National Infrastructure (June 2010), available at http://www.epractice.eu/en/document/288210.
- 20. As regulated inLovbekendtgÃ¸relse 2009-09-14 nr. 878 om Det Centrale Personregister (Consolidated Act on Central Personal Registration, No. 878 of 14 September 2009).
- 21. The information accessible includes primarily: name, address, job position, death, and disappearance.
- 22. Identified by either CPR number, date of birth and name, or address and name.
- 23. The Consolidated Act on Central Personal Registration, Section 28.
- 24. LovbekendtgÃ¸relse 2010-08-18 nr. 1061UdlÃ¦ndingelov (Consolidated Aliens Act No. 1061 of 18 August 2010).
- 25. Report of the Human Rights Committee, A/56/40,Volume 1, 26 October 2001, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N01/602/26/PDF/N0160226.pdf?O....