Remote searches in the cloud

Transcription

1 Remote searches in the cloud A comparative perspective Charlotte Conings & Ruben Roex

2 Setting the scene

3 Elements considered

4 Access to the cloud Network search (art. 88ter CCP) What? Expanding initial search in information system Special access of person entitled to use initial system Interesting data can be seized, deleted, access blocked

5 Access to the cloud Network search (art. 88ter CCP) On whose authority? Investigating judge

6 Access to the cloud Network search (art. 88ter CCP) Conditions? Lawful initial search Necessary to reveal truth Other measures disproportionate OR Risk losing evidence

7 Access to the cloud Network search (art. 125j CCP) What? Expanding initial search Right to access by person using initially searched place Interesting data can be seized, deleted, access blocked

8 Access to the cloud Network search (art. 125j CCP) On whose authority? Depending upon initial search (Police Public Prosecutor Examining Magistrate)

9 Access to the cloud Network search (art. 125j CCP) Conditions? Lawful initial search Reasons to believe relevant data will be found Necessary to reveal truth

10 Access to the cloud Powers of search and seizure (s. 20 PACE) What? Extension of powers of seizure to computerised information Any information stored in electronic form can be taken away Interesting data can be seized in an intelligible form

11 Access to the cloud Powers of search and seizure (s. 20 PACE) On whose authority? Depending on the context of search & seizure Warrant: Justice of the Peace After arrest: senior police officer

12 Access to the cloud Powers of search and seizure (s. 20 PACE) Conditions? Lawful authority to search and seize Accessibility from premises

13 Access across borders Principle: International cooperation (+ art. 32 CC) Exception: Unilateral search (pragmatic) Unintended search abroad/competent state unknown/need to secure evidence Data can only be copied Notification authorities of state concerned (if reasonably identifiable)

14 Access across borders Currently Principle: Network search limited to Dutch territory International cooperation (+ art. 32 CC) Exception: Acting in good faith

15 Access across borders Future Principle: International cooperation (+art. 32 CC) Exception: Unilateral search Securing evidence and blocking access to data Concerned state unknown Concerned state known if necessary

16 Access across borders Principle: International cooperation (+ art. 32 CC) Exception: Unilateral search Passive observer Location data unknown

17 Order to decrypt Order to provide information (art. 88quater, 1 CCP) Who? What? Persons with special knowledge IT-system or service to secure or encrypt data Functioning IT-system Possibilities to obtain access Refusing to cooperate = offence

18 Order to decrypt Order to act (art. 88quater, 2 CCP) Who? Any qualified person, except suspect & certain family members What? Operate IT-system Search, make available, copy, render inaccessible, remove relevant data Refusing to cooperate = offence

19 Order to decrypt Currently (art. 125k CCP) Who? Persons with special knowledge security measures Except suspect, certain family members, holders of professional secrecy What? Provide information or access

20 Order to decrypt Future (proposed art. 125k, 4 CCP) Who? Suspect of terrorism or offences concerning child pornography by profession or custom On whose authority? Public Prosecutor with authorisation of examining magistrate Refusing to cooperate = offence

21 Order to decrypt Notices requiring disclosure (ss RIPA) Who? Authorised personnel (e.g. police officers with a valid seizure warrant under) Order can be given to anyone who has the key (exceptions in corporate settings) What? The key(s) or the decrypted information itself (exceptions in section 51 RIPA) Refusing to cooperate = offence

22 Searching secretly Network search (art. 88ter CCP) Provision is unclear + Duty to inform Doctrine: discussion going on Preparatory documents: Hacking by government as new, secret investigating measure is prohibited

23 Searching secretly Sneak and peek (art. 46quinquies & 89ter CCP) Evolutionary interpretation Not used in practice Clear, detailed legal base as required by ECHR?

24 Searching secretly Currently No specific provision Evolutionary interpretation sneak and peek?

25 Searching secretly Future (proposed art. 125ja CCP) Secretly accessing using technical tool Suspect of criminal act possibly entailing pre-trial detention + serious breach of legal order Order Public Prosecutor + authorisation Examining Magistrate Max. 4 weeks (renewable)

26 Searching secretly Not possible using powers of search and seizure Only possible under special powers granted by RIPA (interception and surveillance)

27 Overview Yes Yes Yes? Yes Today: no Future: yes Today: No Future: Yes Today: No Future: yes Yes Yes Yes No

28 Thank you