Posted on October 8, 2015 by Jan-Jaap Oerlemans in Criminal Law and Criminology, Interdisciplinary Study of the Law
A digital revolution has taken place for law enforcement authorities. A treasure trove of information is currently publicly available on the Internet. In addition, large amounts of information can be gathered from third parties, such as telecommunication providers, financial institutions and online service providers. Furthermore, law enforcement authorities can analyse every piece of information on seized computers with specialised software. All that information can be combined and processed and thereby provides great investigative potential for law enforcement authorities.
The Dutch legislator is currently seeking to amend (in Dutch) the Dutch Criminal Code of Criminal Procedure (DCCP) and aims to take into account the influence of Information and Communication Technology on police work.
However the current plans only take into consideration the gathering of publicly available information and the seizure of computers. Yet these investigation methods are not the full spectrum of digital investigation methods that is available to law enforcement authorities. Remarkably, even the planned amendments to the DCCP to accommodate these two investigation methods – and beef up the safeguards to protect the individuals involved – have now been put on hold or will be further researched to assess their desirability.
‘Open source’ informationPublicly available online information provides a powerful tool for surveillance by law enforcement authorities. People willingly post large amounts of personal information about themselves on online forums and social media services. Other individuals can also post information about people on the Internet. In law enforcement terms that information is called ‘open source’ information, i.e. information that anyone can access, purchase, or gather by observation. The thing is that law enforcement officials do not even know themselves under which conditions and to what extent the information can be collected.
Also note that the collected information can be combined with other information collected from third parties and further processed. By use of specialised software an intricate picture of certain aspects of an individual’s life and relationships with other individuals can be obtained. In first instance, the Dutch legislator proposed creating detailed regulations in the DCCP to regulate the investigation method. However the Dutch police do not support this proposal and the Dutch Minister of Security and Justice has now put these plans on hold to assess their desirability.
A warrant for seized computersThe second amendment proposed was for the seizure and subsequent analysis of data stored on computers. The Dutch Minister of Security and Justice acknowledges (p. 83) the serious privacy interference that takes place when computers are seized and suggests that ‘a higher authority’ should authorise the seizure. In my previous blog post I argued that a warrant requirement and mandatory limitation of the scope of the warrant are therefore appropriate safeguards for the seizure of computers. These safeguards can be derived from case law by the European Court of Human Rights regarding computer searches. Yet the Dutch Minister of Security and Justice does not even refer to that case law or current Dutch case law on the subject. Dutch law enforcement authorities fear a significant administrative burden (p. 8) due to proposed changes in legislation. Therefore further research has been announced to investigate the desirability of the amendment. Indeed, a warrant requirement will bring with it more paperwork. Yet it is an important safeguard in protecting individuals from the arbitrary interference of law enforcement authorities in our private lives. Possibly the Dutch Supreme Court will step in and require a warrant for seizing and analysing the contents stored on computers in the meantime.
Concluding remarksIn my view, the proposed Dutch reforms for criminal procedure do not fully appreciate the consequences that technology bring with for criminal investigations. The amount of data that law enforcement authorities can collect and the tools at their disposal to process every piece of that information should not be underestimated. The two proposed amendments are a start in thinking about those consequences and how to regulate digital investigation methods. Therefore it is unfortunate that those amendments will now be put on hold, possibly toned down, and further researched for their desirability.
Arguably, the ambition of updating criminal procedure law to fit the new digital investigation landscape is too ambitious and a separate legislative project is desirable. In addition, it is possible that certain restrictions on investigation methods are better suited for regulation outside criminal procedure. However, in any case, there should be a sense of urgency to accommodate digital investigation methods in our legal framework and provide sufficient safeguards for the individuals involved. To be continued I hope.