#11: When may your smartphone be investigated?

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Privacy is a hot topic these days now that everywhere around us data is being collected. Our tablets and smartphones contain a lot of information about our private lives. Not only all your contacts are accessible, also the communication with these contacts is saved. Your smartphone nowadays even knows how many steps you have taken today and where. It is not hard to imagine how much valuable information a smartphone contains for investigative departments of the police. The question is when these data carriers may be seized by the authorities? And when may the data be investigated on your phone? In the Netherlands a discussion exists on the question whether police officers may seize a smartphone upon arrest and search through the data. We would like to share this discussion with you.

Article 94 of the Dutch Criminal Procedural Code (DCPC) states that all objects that can reveal the truth can be seized. In this quest for the truth these objects may also be investigated. The Supreme Court judged on 29 March 1994 that computers are not eliminated from the aforementioned objects. Article 94 states which objects may be seized, however the authorization to seize occurs upon arrest of the suspect or when the suspect is caught upon act. This derives from – for instance – article 95 or 96 DCPC. These authorizations to seize the objects are given to the investigation authorities which do not require prior consent from a public prosecutor or investigation judge.

In a fairly recent case this situation has been put to the test by article 8 of the European Convention of Human Rights (ECHR) which protects our right to privacy. We have mentioned this case already in Lawlunch #01. The defence argued that a warrantless seizure of a smartphone during an arrest and more important the search of the digital content on this smartphone is not in accordance with article 8 of the ECHR, since this infringement was not in accordance with the law. An infringement of article 8 of the ECHR must be adequately accessible and foreseeable in the law. When article 94 of the DCPC was drafted it was not foreseen that technology would develop in such a way that a phone would not only safe traffic data but actually also someone’s entire private life. For this reason it was not foreseeable that a policeman would be allowed to search data on this object without a court order. The Higher Court in the Netherlands decided that indeed article 94 of the DCPC created some base to conduct research on a seized object, but does not give concrete criteria by which this research is bound. This unlimited investigating power creates an infringement of article 8 of the Convention.

In another case with a different Higher Court the same arguments were put forward. However this Court judged the opposite. It stated that based on the jurisprudence of the Supreme Court which dates back to 29 March 1994 it was foreseeable that smartphones (or computers) can be seized and searched  based on article 94. The infringement of article 8 ECHR was thus justified by law according to this Higher Court.

Both cases have been appealed to the Supreme Court. In the second case in which the Higher Court judged that there was no breach of article 8 of the European Convention an attorney general wrote an independent advise to the Supreme Court. In this advice he first refers to the relevant case law of the European Court for Human Rights (European Court). He states that according to the case of Wieser en Bicos Beteiligungen GmbH vs Austria the European Court first determines whether there is ‘some basis in domestic law’ which justifies the infringement of article 8. However the European Court also determines the quality of the law. The domestic law must be in accordance with the rule of law and thus be accessible and foreseeable. This is often explained by the European Court for instance in Petri Sallinen vs. Finland that “the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such measures”. Moreover the European Court  considers that such judicial review and the possibility to exclude evidence obtained constitutes an important safeguard to protect the right of privacy.

Although before the attorney general comes to a conclusion in his advice to the Supreme Court he first compares the law of Belgium, Germany and the United States. In Belgium for instance a new legislative proposal is brought forward which states that an automatic information system such as a smartphone may in some cases be seized and searched without a warrant. However, only the data which is saved on the phone itself – not on another server – may be investigated. This means that the phone must be put into flight modus before it is investigated.

In Germany a police officer may seize a smartphone without any prior warrant but the smartphone may only be investigated in case of a warrant to do so. In the United Stated the Supreme Court judged in the prominent case Riley v. United States:

“(…) it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate (…). Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.”

The Supreme Court comes to the conclusion in this US case that a smartphone may only be investigated with a prior warrant.

Based on the research the attorney general has set out in his advice to the Supreme Court he comes to the conclusion that the quality of the Dutch law is not satisfactory. The Dutch law is very general and does not require any judicial review. For this reason he states that the Higher Court should have assessed in more detail the quality of the law. However the attorney general’s advice then takes a remarkable turn. In his opinion this does not mean that the reason for cassation has to be granted. This means that even if there would be an infringement of article 8 of the ECHR the evidence does not have to be excluded from the case. The reasoning behind this leads back to the jurisprudence of our Supreme Court regarding procedural errors.

Article 359a of the DCPC provides the basis to decide what kind of implications a procedural error should have. The Court can decide that an irreparable procedural error during the criminal investigations of the proceedings should result in the exclusion of evidence if three factors have been met. The first factor is the interest the violated ‘rule’ aims to protect. The second factor is the seriousness of the infringement and the third factor is the disadvantage the omission has for the suspect. For a more detailed explanation we refer to Lawlunch #05. Moreover the Supreme Court judged that an infringement of the right to privacy does not have to result into any legal effect as long as the right to a fair trial is guaranteed. This means that the measure of exclusion of evidence is in principle only applied in case where an infringement of the right to a fair trial occurred.

We believe that the conclusion of the attorney general is not satisfactory and does not give the protection of article 8 of the ECHR as it should. Moreover since the European Court did not only state that a judicial review is an important safeguard to protect the right of privacy but also the possibility to exclude evidence obtained. We hope the Supreme Court will also take notice of this safeguard set out by the European Court and protects our right to privacy.

We are curious how the right to privacy in the sense of article 8 ECHR is protected and how infringements of this right are sanctioned in your country. Do not hesitate to leave a comment so we can have a comparative law discussion.

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