Is a warrant required for the seizure and analysis of data stored on smartphones? In 2015, I wrote a blog in which I argued that a warrant is indeed desirable when seizing a smartphone. Two years later, there is still no legislation in place in Dutch and Belgium law requiring a warrant.
However, on 4 April 2017, the Dutch Supreme Court addressed the issue in a case in which law enforcement officials seized an iPhone and analysed large amounts of data stored on it, including Whatsapp-messages. The Supreme Court only demands a warrant when ‘a complete analysis’ takes place of a seized device that stores data on it. In an article I wrote (in Dutch) with my Belgian colleague Sofie Royer, we argue that the decision creates uncertainty about which regulations are applicable. We already see court decisions, like this one (in Dutch), in which a Dutch Court of Appeal decided that ‘reading videos and photos on a telephone only infringes with the right to privacy in a minor manner’.
In our view, seizing a device that stores data and analysing that data always interferes with the right to privacy in a serious manner and, therefore, should always requires a warrant from a judge. In our article, we argue that the case law of the European Court of European Rights supports our view that a(n) (investigative) judge must give permission prior to, or after, the seizure of the device. See, for example, the cases of ECtHR 30 September 2014, no. 8429/05 (Prezhdarovi v. Bulgaria), par. 49 and ECtHR 30 May 2017, no. 32600/12 (Trabajo Rueda v. Spain), par. 45-48.
The Dutch and Belgian government should go a step further and require law enforcement authorities to stipulate in a warrant which data law they are looking for and why that analysis is deemed proportionate. In legislation, the authority to seize a device and to analyse the contents stored on the device should be separated. Different safeguards and conditions should apply for these two different phases in the evidence gathering procedure. Finally, we suggest that regulations should be in place that clearly explain when and under which conditions the owners of a seized device can get their devices back, or at least (certain) data stored on those devices.
We would be interested to know whether these discussions also take place in other countries! Please tell us by leaving a comment to this blog post or by sending an e-mail, preferably with a link to case law or a news article about this issue.