However, the European Court of Justice (ECJ) has ruled that if the incident or investigation is not urgent, authorities must obtain a court order to access data contained on smart devices owned by individuals.
The ruling does not change investigative practices in Estonia, but may change them in neighboring states.
The ECJ ruled two weeks ago that it is not permissible to access smartphone content without prior permission from a court or independent body.
The court held that accessing all personal data stored on mobile phones in the course of a criminal investigation could amount to a serious or exceptionally serious violation of the fundamental rights of the individuals concerned. Certified.
The court found that data such as messages, photos, and browsing history can, depending on the circumstances, serve as the basis for drawing highly accurate conclusions about a person’s private life.
It may also contain highly sensitive information.
The ECJ’s decision arose after the plaintiff challenged the seizure of his mobile phone in an Austrian court. The Austrian authorities took the matter to the ECJ.
In this case, Austrian authorities seized the plaintiff’s mobile phone after a drug control test revealed that a package sent to the same person contained 85 grams of marijuana.
Austrian police then attempted to unlock the phone and access the data it contained, but were unsuccessful.
Police did not obtain permission from prosecutors or the court, did not document their attempts to unlock the phone, and did not notify the complainant.
The plaintiff only learned during the proceedings that he had attempted to unlock his cell phone.
The complainant also argued that the offenses charged were not crimes but misdemeanors, punishable by up to one year in prison.
However, the court rejected this position, saying that access to data contained on mobile phones could only be granted in cases of serious crimes, saying it would unduly limit authorities’ ability to investigate.
“This generally leads to an increased risk of impunity for crimes and therefore risks the creation of an EU territory based on freedom, security and justice,” the ECJ ruled.
However, the ECJ also said that tampering with privacy and data protection must be regulated by law. This means that Member States’ legislators must be able to judge with sufficient precision the circumstances to be taken into account, in particular the nature and category of the crime.
The ECJ found that the conditions for accessing data must include a prior check by a court or an independent administrative body. We acknowledge that in practice this condition may not always be met in cases of duly justified emergency.
“This control must ensure a fair balance between the need for investigation in the light of legitimate interests related to the fight against crime, on the one hand, and the fundamental right to respect and protection of privacy, on the other hand. “It is not part of personal data,” the ECJ pointed out.
Police must seek permission from an Estonian court in all cases
According to Estonian national law, police must always obtain a court order to access such data.
Finland’s laws are a little more lenient in this regard, so the impact of the ECJ’s ruling on police work is currently being debated north of the Gulf of Finland.
Already in 2021, the Estonian Supreme Court ruled, following the ECJ judgment, that requesting telecommunications data solely on the basis of the prosecutor’s permission is in fact impermissible.
The Criminal Procedure Code was subsequently amended to take into account another ECJ judgment, and from 2022 onwards Estonia will have additional conditions and a requirement for prior court permission for telecommunications data requests.
“Under current law, a court order is always required to obtain telecommunications data, even in an exigent case,” Ministry of Justice spokesperson Sessi Poppel told ERR.
“The only information that can be requested without court permission is information about the smartphone’s ownership and IP address,” Poppel added.
The Police and Border Protection Authority (PPA) made a similar statement. In Estonia, courts have authorized authorities to carry out investigative measures that involve violations of fundamental rights, including searches, including the right to access data carriers belonging to subjects. Minutes on smartphones, etc.
“There is no need to re-apply to the court for permission to inspect the content of the smart device as it will be duplicated for later inspection,” Ago Anbar, head of the Central Criminal Police Cyber Crime Bureau, told ERR. spoke.
If a final court order is given in a criminal case or the criminal case is closed, the stored data must be permanently deleted in accordance with the provisions of that order or the applicable regulations.
Amber added that the number of smart devices that police review in this way is increasing every year.
Specifically, the number of smartphones whose data contents have been copied by PPA during proceedings over the past five years has averaged just over 1,460 per year.
The highest number of cases occurred in 2021, with 1,694 cases.
Amber said the ability to access data carrier content is a critical tool in police work, and without it police work would be much more difficult.
“There is no doubt that this method is of great importance to law enforcement, and may even be an essential tool in solving and preventing serious crimes,” he said.
This decision could affect Finnish policing
Statistics show that access to content on smart devices is at least as important to Finnish police.
In Estonia’s northern neighbor, police examined the contents of 8,665 smartphones during an investigation last year, according to the daily Helsingin Sanomat.
Under Finnish law, the police retain this right if, in case of conviction, the penalty for the crime under investigation is at least six months’ imprisonment.
This relatively low threshold (see the Austrian case above) means that even minor crimes such as vandalism can lead to decisions to confiscate and search smart devices. .
In any case, Finnish authorities have used this right in the last year, mainly in investigating crimes involving violence, illegal drugs, and even sexual crimes.
The Finnish Police and the Finnish Ministry of Justice are still assessing the impact of the ECJ judgment.
According to the ministry’s initial assessment, the ECJ ruling could indeed change police practices, Helsingin Sanomat reported.
Legal experts interviewed by the newspaper said the decision proves the fact that current Finnish police practices regarding access to smartphone content are not actually in line with EU law.
The ECJ’s ruling does not affect the interception of voice calls or the monitoring of SMS and message sending. Currently, these also require a court order in Finland.
In the current case, businessman Pavel Prunschild is suing the state for allegedly misusing his personal data, including data obtained from his smartphone during an investigation.
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