New privacy concepts for regulating digital investigations: Experiences in modernizing the Dutch Code of Criminal Procedure

18th September 2018 @ 4:00 pm – 5:00 pm Europe/Rome Timezone
Villa Schifanoia - Sala Triaria
Via Giovanni Boccaccio 121
I-50126, Firenze

Lecture by: Bert-Jaap Koops

Discussant: Giovanni Sartor

The Netherlands is working on a comprehensive modernization of its Code of Criminal Procedure (2014-2024). Part of this concerns the regulation of digital investigation powers (Book 2 of the revised Code). It is no easy task to formulate investigation powers in a way that is both sufficiently precise (so that police and citizens know what to expect) and sufficiently sustainable (so that the new Code does not require revision for at least a decade). Can we regulate digital investigations in a way that works until, say, 2030?

In this presentation, I will share my experiences in the advisory committee I chaired in 2017-18 to address this challenge. Illustrated by several examples (investigating a smartphone seized when a police officer arrests someone on the street; investigating publicly available Internet sources; investigation Internet of Things communications), I will highlight one of the main challenges that law-makers and practitioners face today in digital investigations: can we determine ex ante how intrusive an investigation power is in an age of datafication and ubiquitous connectivity? In other words, which concept of privacy can guide us to regulate digital investigations, in a world where 19th-century protection of the home and communications content can no longer function as the key pillars of privacy protection?