Legal Aspects of the EncroChat Operation: A Human Rights Perspective

Oerlemans, Johannes; Toor, D.A.G. van

doi:10.1163/15718174-bja10037

Cited by 5 publications

(2 citation statements)

References 1 publication

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“…The question of whether a dataset should be disclosed, must be reviewed with regard to the three different datasets. 105 As for the raw dataset, there is no obligation to disclose all information, especially not when law enforcement authorities did not review the relevance of the data themselves. 106 When the raw dataset is searched and thereafter filtered, using specific search terms to create a secondary dataset, it could be necessary to include the defence in this process.…”

Section: Access To Datasetsmentioning

confidence: 99%

The future of data-driven investigations in light of the Sky ECC operation

Oerlemans,

Royer

2023

New Journal of European Criminal Law

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The Sky elliptic-curve cryptography (Sky ECC) operation is a prime example of a data driven investigation. The collection of approximately 1 billion messages from 70,000 phones paved the way for hundreds of criminal investigations, resulting in numerous convictions in the Netherlands and Belgium alone. This article addresses how the Sky ECC operation interferes with the right to privacy and the right to a fair trial. We examine whether or not, and on what terms, there is a future for data driven criminal investigations. Our main research question is therefore how data driven criminal investigations can be (better) regulated in order to be in line with case law of the European Court of Human Rights. To answer the research question, the main characteristics and legal criteria for data driven investigation are identified. These criteria derived from the right to privacy and the right to a fair trial. Finally, we examine the impact of a violation of these criteria for the use of evidence in criminal proceedings. The research uncovers a disconnection between data protection regulations and criminal procedural law. It highlights that practitioners concentrate primarily on the collection phase, governed by criminal procedural law, whereas the most urgent questions relate to the respect of data protection law and the right to a fair trial. This finding suggests an ongoing discourse relating to the transparency of data driven criminal operations like Sky ECC and the need to address concerns regarding the reliability of evidence.

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Section: Access To Datasetsmentioning

confidence: 99%

The future of data-driven investigations in light of the Sky ECC operation

Oerlemans,

Royer

2023

New Journal of European Criminal Law

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“…In the Netherlands -to date -the police arrested over 100 people and found 19 methamphetamine laboratories. 15 While the analysis of data in the case of EncroChat data is not solely directed at gathering information for intelligence purposes, we do consider this type of data analysis as a form of data-driven policing. As mentioned, essential to data-driven policing is that a large amount of a wide variety of personal data is processed in a vast manner.…”

Section: Data-driven Policing: An Outlinementioning

confidence: 99%

The principle of purpose limitation in data-driven policing: A guiding light or an empty shell?

Te Molder,

Fedorova,

Dubelaar

et al. 2023

New Journal of European Criminal Law

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Current technological developments fuel the need and opportunities for data-driven policing that criminal enforcement authorities are eager to employ. Data-driven policing implies a combined use of data collected through various methods and for various purposes and begs the question on the limits to be set for the re-use of data for criminal investigation and intelligence purposes. The purpose limitation principle as enshrined in the Law Enforcement Directive (LED) provides those limits. Looking at data-driven policing through the lens of the principle of purpose limitation, particularly two problems are visible. First, there is an inherent tension between data-driven policing and the principle of purpose limitation. In essence, one of the goals of purpose limitation is limiting the aggregation and re-use of personal data, whereas this aggregation and re-use of personal data is one of the main reasons for criminal law enforcement authorities to use data-driven policing methods. Second, the meaning of the principle of purpose limitation and the conditions for its application in criminal investigations are not clearly defined and the precise implications for national implementation of this principle are ambiguous. The paper aims to contribute to the debate on how the principle of purpose limitation can be implemented in national jurisdictions in a way that balances its important safeguarding function and the needs of law enforcement authorities. This is done by examining the meaning and rationale of the principle of purpose limitation within the legal framework of the LED as well as what guidance can be drawn from human rights case law from the ECtHR and the CJEU, as it is widely acknowledged the rationale of purpose limitation is rooted in the need to protect the individuals’ rights to privacy and to prevent abuse of power by the authorities.

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The Role of Law Enforcement in the Regulation of Cryptomarkets (and the Limited Role of Deterrence)

Harinam,

Ariel

2024

Law Enforcement Strategies for Disrupting Cryptomarkets

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Legal Aspects of the EncroChat Operation: A Human Rights Perspective

Cited by 5 publications

References 1 publication

The future of data-driven investigations in light of the Sky ECC operation

The future of data-driven investigations in light of the Sky ECC operation

The principle of purpose limitation in data-driven policing: A guiding light or an empty shell?

The Role of Law Enforcement in the Regulation of Cryptomarkets (and the Limited Role of Deterrence)

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