In many criminal cases, an examination of the phone can be decisive for a finding of evidence. It is therefore not surprising that police officers are only too happy to poke around in the data carriers and regularly fish for the access codes as early as during the 'social' interrogation. Sometimes this is even given because the person does not want to give the impression that he or she has something to hide. This then reveals unnecessarily protected private information. Even if someone has nothing to hide, it is conceivable that the phone code is not given. Contact lists, browsing history and photo gallery, give a lot of personal information. That information may be protected. Nor should a cop be given access to a home just because someone would have nothing to hide.<\/p>\n
To give suspects an extra push to give the access codes, suspects are sometimes given the promise that the phone will otherwise be sent to the NFI for examination, where it will be cracked and possibly returned damaged beyond repair. Hoping to get the phone back quickly, this can be a major reason for suspects to give the access codes anyway. A questionable means of pressure by the police.<\/p>\n
Recent jurisprudence from the Court of Justice in Luxembourg and, following it, the Supreme Court, has meant that the police or the public prosecutor may not simply send data carriers for examination to the NFI to be read out.<\/p>\n
Late last year, the European Court of Justice (CJEU) in Luxembourg ruled in the case of 'Landeck<\/em>' namely, made it clear that Member States should ensure that legislation requires a judicial review prior to the investigation. In particular, this involves a so-called proportionality test. That is, the offence being investigated must be serious enough to justify an invasion of privacy. Also, a less intrusive means of achieving the same goal must be absent.<\/p>\n Pending a law, the Supreme Court ruled in March this year that in cases where it is foreseeable that personal information on the data carrier will become visible to investigating officers, the examining magistrate should be asked for permission to do so. If the public prosecutor fails to do so, this may lead to illegality and exclusion of evidence. Only properly justified urgent cases can make an exception to this. This means that the examining magistrate may refuse the public prosecutor's desired examination of an attached data carrier.<\/p>\n Yet the Supreme Court does not yet go as far as the CJEU. The Supreme Court seems to turn a blind eye to summary enquiries into, for example, the identity of a person or the suspect's most recent contacts. Whether this is also legally tenable in practice remains to be seen. Even summary investigations can infringe personal privacy.<\/p>\n The foregoing does not alter the fact that personal data on a data carrier such as a phone is a lot better protected from police and judicial investigations. Since smartphones are still an important source of information for investigative agencies, it is expected that this will lead to some interesting verdicts. At least the suspect is a little better off with this new development.<\/p>\n Mr. D.M. Penn<\/p>\n \n ","protected":false},"excerpt":{"rendered":" In veel strafzaken kan een onderzoek naar de telefoon van doorslaggevende betekenis zijn voor een bewezenverklaring. Het is daarom niet verwonderlijk dat politieambtenaren maar wat graag willen rondneuzen in de gegevensdragers en regelmatig al tijdens het \u2018sociale\u2019 verhoor vissen naar de toegangscodes. Soms wordt die nog gegeven ook, omdat diegene niet de indruk wil wekken […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[52,54,53],"class_list":["post-7185","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-landeck","tag-smartphone","tag-toetsing"],"_links":{"self":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/7185","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/comments?post=7185"}],"version-history":[{"count":2,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/7185\/revisions"}],"predecessor-version":[{"id":7187,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/7185\/revisions\/7187"}],"wp:attachment":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/media?parent=7185"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/categories?post=7185"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/tags?post=7185"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}