The Continuing Evolution of Consent and Authority in Digital Search and Seizure

Abstract

In the last decades, the use of technological tools for investigative purpose has considerably increased, due to the digitalisation of daily activities in any field of private and social life. Search and seizure of digital evidence stand out among the most used means of investigation, being able to find and collect communicative as well as non-communicative data from an electronic device in a short period of time. Since modern technologies allow people to be permanently in contact, recourse to such measures entails significative implications on fundamental rights, affecting the individuals against whom the investigation is addressed as well as third parties.

Online searches, in particular, can severely interfere with the right to privacy, affecting the most intimate sphere of a person's life. Like traditional searches, moreover, online searches are aimed at seizing information stored in the targeted device. But the data collection, which is generally carried out through a bit-by-bit copy, entails the need to strike a balance between privacy and the aims of the criminal investigation.

The present study will try to point out the worrisome lack of an adequate legal basis of the measures of digital search and seizure, from different viewpoints: first, the domestic law level; next, at the European level, both EU law and ECtHR case law; and finally, from a comparative law perspective, with particular regard to the United States.

Notes

1.
Persons nowadays express themselves in the digital world. See Rodotà (2014), p. 102.
2.
Camon (2021), p. 1. The author also highlights the digital shift produced by the need to handle the Covid-19 emergency.
3.
A malware is "a simple or self-replicating program, which discreetly installs itself in a data processing system, without the users' knowledge or consent, with a view to either endangering data confidentiality, data integrity and system availability or making sure that the users are framed for a computer crime". See Filiol (2005), p. 86.
4.
More precisely, trojans constitute just one of the various types of malware which may be deployed in a criminal investigation. Other examples are spyware, viruses, or keyloggers ('keystroke logging'). The latter, in particular, can record and send information on the keys pressed by the user of the infected device, in order to monitor the activity and obtain passwords or other relevant information through the keyboard. See Vaciago and Silva Ramalho (2016), pp. 88 ff.
5.
The backdoor created by the trojan allows the controller to access the system, bypassing the existing authentication mechanisms. Vaciago and Silva Ramalho (2016), p. 89.
6.
For in-depth analysis of telecommunication intercepts through spyware see Foti, in this volume. See also Foti (2021), pp. 202 ff.; Iovene (2014), p. 330.
7.
On the differences between traditional searches and digital evidence searches, see Kerr (2005c), pp. 90 ff.
8.
Italian scholarship has always encouraged recourse to inspection of computer systems, while limiting search and seizure of hardware to cases in which less intrusive investigative measures are unavailable. Vitale (2008), pp. 506 ff.; Costabile (2005), pp. 531 ff.
9.
Digital evidence "encompasses any and all digital data that can establish that a crime has been committed or can provide a link between a crime and its victim or a crime and its perpatrator". Casey (2004), p. 688.
10.
Škrtić et al. (2013), p. 513.
11.
The recourse to remote search and seizure raises also serious concerns related to a possible breach of sovereignty. Thus, investigative authorities could have access to data stored in foreign countries and such possibility entails an extra-borders application of lex loci. Until this moment, international law has not made clear whether the remote access to data (without consent by the State where such data are stored) constitutes a breach of sovereignty. See Osula (2017), p. 37. When a NIT (Network Investigative Techniques) search occurs, the risk of conflicts of jurisdictions is real. On this topic, see Bercovitz (2021), who proposes a legislative regulation of the matter in USA, in order to provide a legal definition of which is the situs of NIT searches. See Koops and Goodwin (2014). Cf. also Goldsmith (2001), pp. 103 ff. This author argued that remote cross-border searches were not "prohibited by norms of territorial sovereignty".
12.
In 2020, due to the distancing measures and lockdown in some European countries, cybercriminals took advantage of the emergency and increased their activity. For instance, digital materials and posts related to child abuse increased. Electronic evidence was essential to face this concern. See SIRIUS EU Digital Evidence Situation Report about Cybercrime – 3 ^rd Annual Report, 2021, accessible at https://www.europol.europa.eu/cms/sites/default/files/documents/SIRIUS_DESR_12_2021.pdf; Exploiting Isolation: Offenders and victims of online child sexual abuse during the Covid-19 pandemic, 19 June 2020, accessible at https://www.europol.europa.eu/sites/default/files/documents/europol_covid_report-cse_jun2020v.3_0.pdf. Cf., among others, Flor and Oh Jang (2012), pp. 13 ff.
13.
CJEU, Digital Rights Ireland and Others, judgment of 8 April 2014, C-293/12 and C-594/12, para. 38 ff. Any limitation on the rights to privacy and data protection laid down by the EUChFR must be provided by law and respect their essence. In compliant with the principle of proportionality, limitations on these rights may be made only if they are necessary and genuinely meet the objectives of general interest recognised by the EU or the need to protect the rights and freedoms of other people.
14.
Intelligence services adopt strategic or mass surveillance to detect "unknown threats" and prevent the commission of serious crimes; police officers are the main users of focused surveillance, generally targeted to "known threats", in order to collect evidence related to an already committed crime. DCAF Parliamentary Brief (2017), Safeguards in Electronic Surveillance, accessible at https://issat.dcaf.ch/download/111839/2029468/Safeguards%20in%20Electronic%20Surveillance%20-%20DCAF%20Policy%20Brief.pdf, p. 3.
15.
Some years ago, the Model Rules for the Procedure of the European Public Prosecutor's Office, accessible at https://orbilu.uni.lu/bitstream/10993/42085/1/Model%20Rules%20and%20explanatory%20notes%20EN.pdf, already highlighted that the only common element among the legislations of Member States was the absence of a precise regulation on surveillance measures. Cf. Allegrezza (2013), pp. 151 ff.
16.
Iovene (2014), p. 330.
17.
Council of Europe Convention on Cybercrime (CETS No. 185), 23 November 2001, accessible at https://rm.coe.int/1680081561.
18.
Section II (Arts. 14 ff.) of the Budapest Convention deals with procedural law for collection of evidence in electronic form.
19.
See Art. 19 of the Budapest Convention, which deals with search and seizure of stored computer data. The Convention also provides regulation of real-time collection of computer data (Art. 20) and interception of contents (Art. 21).
20.
21.
22.
In this sense, see also Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0093. More recently, cf. Council Regulation (EU) 2017/1939 of 12 October 2017 implementing cooperation on the establishment of the European Public Prosecutor's Office ('the EPPO'), accessible at https://eur-lex.europa.eu/eli/reg/2017/1939/oj.
23.
Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, accessible at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32008F0978. Search and seizure had to be always available for the executing authority in all the cases of serious crimes listed in Art. 14(2). Even though this legislative instrument did not contain any express reference to digital or electronic evidence, it promoted the use of "special investigative techniques" to enable access to personal data, a sufficiently broad formulation that would allow for the use of digital search and seizure.
24.
25.
See, among others, Caianiello (2015).
26.
Art. 13(1) EIO Directive.
27.
Art. 6[1(b)] EIO Directive.
28.
Council Framework Decision of 13 June 2002 on joint investigation teams, accessible at https://www.eurojust.europa.eu/sites/default/files/Partners/JITs/CFDonJITs-2002-06-13-EN.pdf. Interestingly, in 2020 online portals dedicated to law enforcement proved being useful to share digital information between law enforcement agencies, scoring higher than other informal channels used before. Online portals for submission of law enforcement requests have been established individually by several Online Service Providers (OSPs). They are more secure and more informative than e-mail, since it is generally possible to check the status of requests, provide supplementary information and obtain records in a secure environment. Cf. SIRIUS EU Digital Evidence Situation Report, cit., accessible at https://www.europol.europa.eu/cms/sites/default/files/documents/SIRIUS_DESR_12_2021.pdf.
29.
30.
See Neroni Rezende, Sect. 4.1.
31.
See, for instance, with regard to the right to respect for private life and correspondence, ECtHR, Malone v. United Kingdom, judgment of 6 August 1984, Appl. No. 8691/79. After almost 40 years, the principles set by the Court in this decision still represent a relevant guideline to assess whether a breach of Art. 8 ECHR has occurred. Cf. ECtHR, Bykov v. Russia, GC, judgment of 10 March 2009, Appl. No. 4378/02, para. 76; ECtHR, Benedik v. Slovenia, judgment of 24 April 2018, Appl. No. 62357/14, para. 122 ss. The protection of Art. 8 ECHR is granted to "the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world"; ECtHR, judgment of 28 January 2003, Peck v. United Kingdom, Appl. No. 44647/98, para. 57.
32.
In this field of law, the European Court has always insisted on the quality of law since the landmark decision Malone v. United Kingdom.
33.
ECtHR, Malone v. United Kingdom, para. 67; ECtHR, GC, Roman Zakharov v. Russia, judgment of 4 December 2015, Appl. No. 47143/06, para. 229.
34.
ECtHR, Segerstedt-Wiberg and Others v. Sweden, judgment of 6 June 2006, Appl. No. 62332/00, para. 88: "While the Court recognises that intelligence services may legitimately exist in a democratic society, it reiterates that powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions"; cf. ECtHR, Klass and Others v. Germany, judgment of 6 September 1978, Appl. No. 5029/71, para. 42.
35.
ECtHR, Roman Zakharov v. Russia, para. 230; D'Auria and Balsamo v. Italy, judgment of 11 June 2013, Appl. No. 11625/07; Cariello and others v. Italy, judgment of 30 April 2013, Appl. No. 14064/07; Capriotti v. Italy, judgment of 23 February 2016, Appl. No. 28819/12; Leander v. Sweden, judgment of 26 March 1987, Appl. No. 9248/81.
36.
ECtHR, Trabajo Rueda v. Spain, judgment of 30 May 2017, Appl. No. 32600/12. The Court held that the police seizure of the computer and inspection of the stored files without prior judicial authorisation were disproportionate to the legitimate aims pursued and unnecessary in a democratic society.
37.
The margin of appreciation allows national authorities to determine when an investigative measure could interfere with private life, but the final scrutiny about the effective necessity and proportionality of the measures is up to the Strasbourg Court. However, the Court's case law does not allow "building a complete theory or a common European standard on the proportionality principle with respect to the lawfulness of coercive investigative measures nor on the fairness or admissibility of evidence". See Bachmaier Winter (2013), pp. 94–95.
38.
For an interesting comparison between the protection granted by Article 8 ECHR and Fourth Amendment of United States Constitution, see Fura and Klamberg (2012), pp. 463 ff. These authors compare the conditions for the issuing of a judicial warrant, set out by the Fourth Amendment and those prescribed by European case law.
39.
ECtHR, Z v. Finland, judgment of 25 February 1997, Appl. No. 22009/93, para. 99. Even though this decision regards the publication of personal data in the context of a criminal trial, some principles are valid also for the field of criminal investigation.
40.
In this respect, see ECtHR, Smirnov v. Russia, judgment of 7 June 2007, Appl. No. 71362/01, para. 45 ff., regarding the physical search and seizure of a lawyer's office. The applicant had not been a party to the ongoing criminal investigation but represented some defendants. The Court observed that no arrangement had been made to safeguard the privileged materials protected by professional secrecy. Thus, having "regard to the materials that were inspected and seized, the Court finds that the search impinged on professional secrecy to an extent that was disproportionate to whatever legitimate aim was pursed. The Court reiterates in this connection that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention" (para. 48). On similar issues regarding interception of communications of third parties and communications covered by professional confidentiality, see Bachmaier Winter (2004), pp. 41 ff.
41.
ECtHR, Weber and Saravia v. Germany, judgment of 29 June 2006, Appl. No. 54934/00, paras. 103-104; ECtHR, Kruslin v. France, judgment of 24 April 1990, Appl No. 11801/85, para. 35, according to which French legislation at that time did not define "the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order".
42.
ECtHR, Robathin v. Austria, judgment of 3 July 2012, Appl. No. 30457/06, para. 51. In that case, the judicial warrant "gave details in respect of the alleged acts, the time of their commission and the damage allegedly caused" (para. 45), but it did not give specific reasons for the search, and it did not describe the necessity of copying all the electronic data.
43.
As stated by ECtHR, Sigurður Einarsson and Others v. Iceland, judgment of 4 June 2019, Appl. No. 39757/15, para. 90, "The Court accepts that by its nature the 'full collection of data' inevitably included a mass of data which was not prima facie relevant to the case. Moreover, it can accept that when the prosecution is in possession of a vast volume of unprocessed material it may be legitimate for it to sift the information in order to identify what is likely to be relevant and thus reduce the file to manageable proportions. It considers nevertheless that in principle an important safeguard in such a process would be to ensure that the defence is provided with an opportunity to be involved in the definition of the criteria for determining what may be relevant".
44.
ECtHR, GC, Big Brother Watch and Others v. United Kingdom, judgment of 25 May 2021, Appls. Nos. 58170/13, 62322/14 and 24960/15, para. 359. In the same decision, the Court underlined the need of legal provisions which made sufficiently clear the circumstances in which the collected data had to be erased or destroyed and established short retention period (para. 405). On this judgment, see Bachmaier Winter (2021b), pp. 317 ff.
45.
Cybercrime Convention Committee (T-CY), The Budapest Convention on Cybercrime: benefits and impact in practice, Strasbourg, 13 July 2020, accessible at https://rm.coe.int/t-cy-2020-16-bc-benefits-rep-provisional/16809ef6ac, pp. 5 ff., according to which only 42% of national Countries in the world have specifically regulated the procedural powers needed to ensure the preservation of digitally stored evidence, while "many States still rely on general procedural law provisions (for search, seizure and so on) to investigate cybercrime and secure electronic evidence". Furthermore, many countries are reluctant to adopt detailed procedures, due to the lack of their authorities' competence to apply them.
46.
As expressed by Camon (2021), p. 8. In this sense, cf. Kerr (2005a), p. 279, who more than 15 years ago, had already called for the adoption of new rules on digital evidence, highlighting the inadequacy of the traditional investigative procedures to take such information.
47.
See Law No. 48/2008. On this reform see Costabile (2010), pp. 465 ff; Pittiruti (2017), p. 11; Lupária (2009).
48.
Nicolicchia (2020), p. 10.
49.
On the absence of standard operating procedures (S.O.P.) in Italy and the implications in terms of reduced safeguards, see Giunchedi (2013), p. 826; Mattiucci (2013), p. 715.
50.
See Sabillon et al. (2017), who examined the best practices in digital forensic analysis. The establishment of best practice procedures for the digital evidence gathering "can bring digital and physical crime scenes as closely together as possible, and ensure at least 'for all practical purposes' that the data given to the court is identical to the data generated by the suspect". Abel (2009), p. 105.
51.
Bartoli and Lasagni (2021), p. 92. These authors highlighted that the 2008 reform went almost unnoticed for a decade.
52.
Art. 266-bis of Italian CPC. On the hybrid nature of this investigative measure cf. Marcolini (2010), p. 2859.
53.
Communicative data can be related to chat conversations, phone calls and other contacts between users of different devices; non-communicative data, instead, refer to all sorts of information stored in a device, such as photo, videos, browser histories. See Della Monica (2020), pp. 22 ff.
54.
Art. 189 of Italian CPC. See Aterno (2009), p. 213, and more recently, Parlato (2021), pp. 365 ff. See also Italian Court of Cassation, Joint Sections, judgment of 28 marzo 2006, n. 26795, Prisco, accessible at http://servizi.ceda.unina.it/PHP/spec/spec/Cass_26795_2006.pdf.
55.
Daniele (2011), p. 297.
56.
Nicolicchia (2020), p. 37.
57.
Bundesverfassungsgericht (BVerfG), judgment of 27 February 2008, 1 BvR 370/07, 1 BvR 595/07, in Official Case Reports BVerfGE 120, 274, in Neue Juristische Wochenschrift (NJW), 2008, p. 822. See Abel and Schafer (2009), pp. 106. Cf., also, Flor (2009), pp. 697 ff.
58.
Similar indications have been delivered by the Polish Supreme Court, judgment of 26 April 2007, I KZP, 6/07, in Orzecznictwo Sądu Najwyższego Izba Karna i Izba Wojskowa (OSNKW) 2007, No. 5, p. 37. Cf. Böckenförde (2008), pp. 825 ff. For a comparison between the German and the Polish decision, see Kurek (2009), pp. 377 ff.
59.
Nevertheless, online surveillance targeted to specific individuals was not largely widespread in Germany, due to several technical difficulties. See Derin and Golla (2019), p. 1111. But in the last few of years, since government hacking has been intensified, things have changed.
60.
Hornung (2008), pp. 299 ff.
61.
62.
Some of the offences that allow the use of online search do not entail serious danger for human lives, as prescribed by the Federal Court. See Herpig and Schuetze (2017). These authors analyse the debate arisen after the 2017 legislative reform.
63.
Sieber and von zur Mühlen (2016).
64.
Sec. 100d(1) German CPC.
65.

Germany participated in two initiatives in order to facilitate lawful access to electronic devices. See Council Resolution on Encryption. Security through encryption and security despite encryption, Council of the European Union, 24 November 2020, accessible at https://data.consilium.europa.eu/doc/document/ST-13084-2020-REV-1/en/pdf; Non-paper on EU Cyber Diplomacy by Estonia, France, Germany, Poland, Portugal and Slovenia, German Ministry of Foreign Affairs, 2019, accessible at https://www.auswaertiges-amt.de/blob/2418160/206b3bf9aa4ef45a2887399231840d23/201119-non-paper-pdf-data.pdf; see also Herpig and Schuetze (2021).
66.
67.
Cf. Bachmaier Winter (2021a), pp. 169 ff., where the main sources of guidelines and good practices can be read.
68.
Ley Orgánica No. 13, 5 October 2015, amending the Spanish CPC on the strengthening of procedural safeguards and regulating technological investigative measures. On this reform, see Marchena Gómez and González-Cuéllar (2015), pp. 173 ff; Bachmaier Winter (2021a), p. 178. Also, Bachmaier Winter (2017), p. 4.
69.
Spanish Supreme Court, judgment of 23 October 2018, No. 3754/2018. See also Supreme Court, judgment of 18 July 2014, No. 587/2014, and already judgment of 17 April 2013, No. 342/2013.
70.
Art. 588-bis(a) LECrim.
71.
72.
The controls about the lawfulness of the investigative activity can be "ex ante" or "ex post". In the matter discussed here, the protection instruments that can be activated by interested subjects will be mostly subsequent to such operations, since the searched person is usually unaware of the measures. Prior safeguards are left in the proceeding authorities' discretionary power or legal requirements, when existing.
73.
See Quinlan and Wilson (2016), p. 2. In US, at least since 1999 FBI and other law enforcement agencies have used technological skills to access private digital networks and material in the process of investigating crimes.
74.

Fed. R. Crim. P. 41(e)(2)(B) regulates the warrant for a tracking device. "A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to: '(i) complete any installation authorized by the warrant within a specified time no longer than 10 days; (ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and (iii) return the warrant to the judge designated in the warrant'".

During an interview, Kevin Bankston of the Open Technology Institute, said: "Whatever euphemism the FBI uses to describe it – whether they call it a 'remote access search' or a 'network investigative technique' – what we're talking about is government hacking, and this obscure rule change would authorize a whole lot more of it." See https://thefreethoughtproject.com/supreme-court-law-enforcement-remotely-hack-search-computer/#ROeWvFFKpMhTFrmQ.99. Cf. also Delong (2016).
75.
Interestingly, the US Supreme Court extended these safeguards also to search in smartphones, due to the fact that they contain information related to every aspect of private life; therefore, data kept in phones cannot be less protected than data stored in a personal computer. See Riley v. California, 573 U.S. 373 (2014). In NIT searches, the place to be searched is considered "the location of the property to be searched, not the location of the property owner or the agent performing the search". Cf. United States v. Verdugo-Urquidez, 449 U.S. 259 (1990).
76.
This definition has been first provided by the US Supreme Court, Brinegar v. United States, 338 U.S. 160 (1949). However, the concept of 'probable cause' has been explained in many different ways. For example, the Oxford Companion to American Law defines probable cause as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)"; Hall (2002), p. 720.
77.
Coolidge v. New Hampshire, 403 U.S. 443 (1971); Horton v. California, 496 U.S. 128 (1990), in which the Court held that the Fourth Amendment does not prohibit the warrantless seizure of evidence which is in plain view. The discovery of the evidence does not have to be 'inadvertent'.
78.
The 'plain view doctrine' allows the police to seize pieces of evidence discovered during a valid search whenever the incriminating nature of the item to be seized is immediately evident. See Horton v. California, para. 136 ff. For in-depth analysis of case law see Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigation, published by Office of Legal Education Executive Office for United States Attorneys (2009), accessible at https://www.justice.gov/file/442111/download, pp. 34 ff.
79.
See Kerr (2005b), pp. 566 ff., who analyses the possibilities of narrowing the plain view doctrine for digital evidence searches. "Computer hard drives store a tremendous amount of private information that can be exposed even in a targeted search. If everything comes into plain view, the plain view exception threatens to swallow the rule."
80.
Cf. Brenner (2012), pp. 1241–1242, which underlines that "the computer-container essentially offers officers a direct portal into the data it contains, a point of 'entry' they can exploit without affecting any physical entry into Fourth Amendment-protected premises."
81.
Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); United States v. Carey, 172F.3d 1268, 1273–75 (10th Cir. 1999).
82.
United States v. Runyan, 275 F.3d 449, 464–465 (5th Cir. 2001); United States v. Slanina, 283 F.3d 670, 680 (5th Cir. 2002). In those two cases, the Court held that when a warrantless search of a portion of a computer or storage device had been proper, the defendant no longer retained any reasonable expectation of privacy in the remaining contents of the computer or storage device.
83.
An interesting example is helpful to highlight the need of a judicial oversight in order to verify the lawfulness of the investigative activity. In March 2013, the FBI requested a remote search warrant to Magistrate Stephen Smith, Judge of the Southern District of Texas, in order to locate with a software unidentified persons who had hacked into the victim's email account. Moreover, the IP address used for stealing money from the victim's bank account was from a foreign country. Judge Smith rejected the warrant request, since the requested search would violate the Fourth Amendment's protection against unreasonable search and seizure. Furthermore, the judge noted that accidentally hacking innocent people's computers systems would cause a violation of their fundamental rights. See Vijayan (2013).
84.
For instance, The USA Patriot Act of 2001, expired in 2015, instituted a special derogation from this principle, stating that law enforcement officials may access communications records, credit cards, bank numbers and stored emails held by third parties without any probable cause; instead, they just need a reasonable suspicion that such information was related to criminal activities. Such drastic reduction of safeguards, even if it was a consequence of the New York terroristic attack of 11th September 2001, led to strong interference of investigative authorities with right to privacy and secrecy of communication of lots of people. See Doyle (2002).
85.
Legal scholarship has underlined that traditional search and seizure are regulated taking into consideration the characteristics of physical property, which are totally missing in the digital environment. Therefore, it is precisely in this new context that the constitutional protection against the intrusion of public authority must be reconsidered. See Kerr (2005b), p. 535.
86.
Bachmaier Winter (2017), p. 23, has raised some interesting questions: "Once the data stored in the searched computer have been retrieved and copied, how should the IT law enforcement officers discriminate between the relevant and irrelevant files? Can they scrutinize all the data in order to select those that fall within the scope of the warrant? Should forensic tools be used to also limit the computer search only to certain types of files or data? Should the law impose the obligation to use these types of targeted search tools?".
87.
For instance, Spain, which is one of the States with a quite recent modification of the procedural law regarding digital evidence, still misses a regulation about how the proceeding authorities must separate irrelevant data from useful information and how to treat the first ones. Moreover, there was no rule about accidental discoveries of evidence until 2015, when the reform of LECrim (Art. 588-bis(i) referring to Art. 579-bis) added a provision: now it is specified that accidentally found evidence of another crime must be submitted to a judge, who must evaluate how the piece of evidence was collected and assess the circumstances. See Bachmaier Winter (2017), pp. 24 and 26.
88.
Bachmaier Winter (2017), p. 25.
89.
See ECtHR, Sigurður Einarsson and Others v. Iceland, para. 16 ff. Here, the competent prosecutor conducted a search of electronic data using the e-Discovery system 'Clearwell'. This program works through certain keywords and allows detecting the documents and files related to those words.
90.
Ibid. See also United States v. Adjani, 452 F.3d 1140, 1150 (9th Cir. 2006), which underlined that computer files "are easy to disguise or rename" and if the warrant limits the search with keywords, "much evidence could escape discovery simply because of the labelling of the files".
91.
The decryption process usually needs an expert analyst to be successfully done and it also requires a large amount of time; see Kerr (2005b), p. 546.
92.
See art. 254-bis or art. 354 of Italian CPC.
93.
See, ex plurimis, Arizona v. Hicks, 480 U.S. 321 (1987). In that case, the police officers wrote down the serial number of some stereo equipment that they suspected it had been stolen.
94.
Kerr (2005b), pp. 560 ff.
95.
Id., p. 564.
96.
See Taticchi (2010), for whom exact duplicates must be treated as seizure, since the possessory interest of the data's owner imply the exclusive control of the accountant over them. The Author also proposes that the definition of "possessory interest" must be broaden in order to cover also intrusions into someone's digital information. Also, Brenner (2012), p. 1245. Cf. United States v. Ganias, 755 F.3d 125 (2nd Cir. 2014).
97.
In this sense, see Ohm (2005), p. 11, who considers the application of "possessory interest" only when involving "the right to delete", which descends from the traditional property right to destroy the own thing. When the police retain the hardware, it is considered as seizure, but not when they just generate data copies. See Kerr (2010), pp. 712 ff. Cf. Ohm (2008), p. 2 ss., for whom "a constitutionally significant 'seizure' occurs whenever the State takes dominion or control of personally owned data or meaningfully interferes with an individual's right to control his data". Cf. Kerr (2010), p. 724, according to which "the basic principles of the Fourth Amendment can be readily translated from the old to the new".
98.
See Brenner (2012), p. 1245.
99.
See Leacock (2008), p. 225. In the opinion of this author, legal reforms about the electronic world should take into consideration to what extent new technologies, especially the search and seizure regime, could be used for effective investigation and prosecution of cyber conduct.
100.
101.
See Ebert (2020). According to Merissa Kovach, policy strategist with the American Civil Liberties Union of Michigan, this new protection entailed that "when there is new technology down the road that we cannot even imagine existing, we are not going to have to wait for years and years for a case to work its way through the courts."
102.
Art. 6(III) of the Political Constitution of the United Mexican States.
103.
Art. 5(XII) of the Brazilian Constitution.
104.
Art. 5(LXXII) of the Brazilian Constitution.
105.
Foti, Sect. 2.
106.
It should be taken into account that law enforcement bodies and judicial authorities make more and more use of information achieved for different purposes or gathered in the field of non-criminal inquiries. In the last few years, in particular, European countries have undertaken various administrative measures to digitalise public functions and services. For example, some European States have recently adopted a digital certificate (the so-called Green Pass, which includes personal data) to verify if a person is allowed to enter in some places, even for work, having a negative Covid-19 test, antibodies or vaccination. Therefore, if national legislations impose the use of digital instruments on citizens and people submitted to their jurisdiction, they should consequently ensure adequate protection to all those activities carried out through the deployment of ICT tools.
107.
Cf. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, GDPR), accessible at https://eur-lex.europa.eu/eli/reg/2016/679/oj, and Directive (EU) 2016/680 on the protection of natural persons regarding processing of personal data connected with criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016L0680. However, the difficult balance between privacy and security still emerges from European legal instruments, since the favor for cooperation in criminal inquiries inevitably collides with the protection of individuals' intimacy.
108.
Some jurisdictions have reduced the decision-making powers of judges in the pre-trial phase, while strengthening the role of public prosecutors, in relation to European Investigation Order procedures. See Ruggeri (2020), p. 325.
109.
ECtHR, Big Brother Watch and Others v. United Kingdom, para. 197.
110.
ECtHR, Big Brother Watch and Others v. United Kingdom, para. 351.
111.
In some European judicial systems, the Public Prosecutor's Office presents a lack of independence from the Governments. On this topic in the field of judicial cooperation among Member States, see Falcone (2021), pp. 59 ff.
112.
ECtHR, Big Brother Watch and Others v. United Kingdom, para. 352.
113.
CJEU, GC, H.K., judgment of 2 March 2021, C-746/18, para. 51. For more information on this case, see Rovelli (2021). Also, see Foti, in this volume.
114.
In 2016, UK introduced the Investigatory Powers Act to regulate the appointment and the oversight functions of the Investigatory Powers Commissioner. For instance, the Commissioner must keep under review the acquisition, retention, use or disclosure of bulk personal datasets, and, in particular, the operation of safeguards to protect privacy.
115.
Cf. ECtHR, Harju v. Finland, judgment of 15 February 2011, Appl. No. 56716/09, para. 39 ff.
116.
Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, Art. 16(2), accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0680&from=EN.
117.
Art. 16(4) Directive 2016/680.
118.
ECtHR, Big Brother Watch v. United Kingdom, para. 310.
119.
Nicolicchia (2020), pp. 156–157.
120.
See ECtHR, Big Brother Watch v. United Kingdom, para. 337. In the same sense ECtHR, Roman Zakharov v. Russia, para. 234.
121.
Bartoli and Lasagni (2021), pp. 231 ff.
122.
Cf. Sec. 125la Dutch CPC.
123.
Art. 270(b) Swiss CPC. The Swiss procedure law dedicates all the Chapter 8 to covert surveillance measures.
124.
"The mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned of whether subsequent use is made of the data". See ECtHR, S. and Marper v. United Kingdom, judgment of 4 December 2008, Appls. Nos. 30562/04 and 30566/04, par. 121.
125.
Art. 5(LXII) Brazilian Constitution.
126.
ECtHR, Zakharov v. Russia, para. 231; ECtHR, Big Brother Watch v. United Kingdom, para. 226. The Court stressed on the possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data. These safeguards contribute to grant an effective judicial protection. Also, German Bundesverfassunsgericht listed the requirements to obtain the erasing of information among the necessary safeguards descending from the proportionality principle. See Bundesverfassungsgericht (BVerfG), 2016.
127.
Peterson (2021). See Papakonstantinou (2022), which underlines the difficult to achieve a precise definition of 'cybersecurity'. Also Art. 2(1) of Regulation (EU) 2019/881 of the European Parliament and of the Council of 17 April 2019 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No. 526/2013 (Cybersecurity Act), accessible at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R0881&from=EN, provides a definition of cybersecurity, which means "the activities necessary to protect network and information systems, the users of such systems, and other persons affected by cyber threats".
128.
Papakonstantinou (2022), p. 12.
129.
Id., p. 5: "Under a participatory approach everybody would somehow need to act or carry out measures: individuals and legal persons would have to take action, as prescribed by law or other regulations, in order for each to contribute proportionately to achieving the cybersecurity aims. For example, organisations would need to implement technical and organisational measures and individuals would have to apply so-called 'cyber hygiene' practices. Altogether, these collective measures would be aimed to serve the cybersecurity aims".
130.
Personal information may be abused "not just by cybercriminals seeking to develop correlations that can be used in fraud", but also by companies or government services, whether intentionally or unintentionally. See Australian Computer Society (ACS), Cybersecurity. Threats. Challenges. Opportunities, November 2016, accessible at https://ia.acs.org.au/article/2016/acs-launches-cybersecurity-guide.html.
131.
Brenner (2012), p. 1250.
132.
Ibid. The risk is that law enforcement agencies persuade antivirus producer to design programs which do not detect government malware or autonomously stop working when a digital search needs to be performed.
133.
134.
135.
Papakonstantinou (2022), p. 5.
136.
Redins (2021).

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Viviana Di Nuzzo

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Lorena Bachmaier Winter
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Stefano Ruggeri

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Di Nuzzo, V. (2022). Search and Seizure of Digital Evidence: Human Rights Concerns and New Safeguards. In: Bachmaier Winter, L., Ruggeri, S. (eds) Investigating and Preventing Crime in the Digital Era. Legal Studies in International, European and Comparative Criminal Law, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-031-13952-9_6

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