Digital Searches – In Quest for a New European Standard

The extensive access to comprehensive, personality-related data, that is inherent in a digital search of computers and mobile devices, poses unprecedented challenges to the protection of personality under fundamental rights. It is fair to assume that hardly any constitution explicitly address these new threats, which thus demand adaptations of fundamental rights protection to the digitalisation of life and its scrutiny. In German law, the Federal Constitutional Court has assumed this responsibility. The example of its jurisdiction shall be used to show how constitutional protection can increasingly be aligned with the risks of digitalisation for personal privacy.

The presentation deals with the development of the Italian regulation on digital searches. It will illustrate the development of the case law on the matter, and the recent amendment proposals in the legislation in the light of the European jurisprudence. In particular, the presentation will address the concerns emerging from a lack of clear operating standards in the enforcement of digital searches. A specific focus will then be reserved to the critical issue of the intervention of a third and impartial authority in the searches procedure - as this profile has long been underestimated in the Italian legal system. In this perspective, the presentation will also touch on the problematic relation between violation of privacy law and procedural safeguards, which does not yet find a satisfactory solution in the domestic system.

In 2021 media unrevealed that the Polish government hacked cellphones of opposition party members by using an Israeli spyware tool Pegasus. This was done by getting an access to the cellphone remotely through its security weakness and gaining control over the devise browsing photos, files and turning microphone. Although the malware, as reported, was used as so-called operational method in the outside-of-investigation context it raises questions as to whether such mechanisms are an example of the use of some form of surveillance or rather a form of digital search. The presentation seeks for an answer how the use of such invasive tools as a Pegasus spyware is regulated in Poland and whether the current Polish law allows for a proper protection of those whose privacy was invaded by such tool.

According to the territoriality principle, a search measure can only take place in the territory of the state where the investigation is taking place. For extraterritorial searches, police and judicial authorities are supposed to send out a request for mutual legal assistance or, within the EU, a European investigation order to the State where the search measure is to be executed. Digital searches, however, put this traditional approach based on state sovereignty under pressure. The location of data is not always easy to determine and there may be multiple copies. Even if the data is stored abroad, it may easily be accessible from the territory of the investigating authorities. In some States, remote searches which extend other territories are legal, in others the applicable law is less clear. Starting from the current European legal framework on remote searches, this contribution analyses whether a new approach would not make more sense in a digital era.

The aim of the presentation is to conduct a comprehensive analysis of the European Court of Human Rights case law regarding searches in criminal cases. The author will analyze the origins and evolution of the Court‘s approach as well as assess how active the Court is in establishing effective protection against the abuse of powers of authorities conducting searches. The influence of new technologies on practice of searches and their impact on rights of the individual will also be analyzed. The aim of the presentation is to identify what are the elements of the common European standard regarding searches and to evaluate whether and to what extent this standard can offer effective protection of human rights.