The police and the public prosecutor have a well-defined set of tools for the solving of traditional crimes. However, as soon as we get digital, ambiguity sets in. Due to its youth, there is little case law, remote search competences do not really exist, and the power of wire-tapping gets overly widened in practice.

House searching by justice authorities is an old competence that has been able to grow with its age. As with most legislation, over time, case law is built up, which makes the borders more clear. This way, everyone is able to find out what is allowed and how the judge will probably rule. This so-called legal certainty is an important foundation of our legal system: the rules should be clear.

A digital equivalent of house searching does not really exist in the Netherlands. Of course, it would be unreasonable to require it to be crystal clear, as clarity comes over time. However, the current situation is not just a bit unclear, it is very ambiguous.

Wire-tapping Is NOT Entering
These days the competence of wire-tapping tends to be broadened to remote search – or “entering an information system”, as a legal expert would say. A justification commonly heard is that Voice over IP communications are encrypted rather well, which makes tapping quite useless. For this reason, the police feels they should tap at the entry point. In other words, they enter your computer and listen between your microphone and your digital telephony software.

Although this justification may seem reasonable at first, it really is not. In the end, they perform an entry on your computer, which is very comparable with the competence of entering a house the authorities have, on basis of a competence of merely listening at the middle of the wire. One could compare this to the police breaking into your house to plant a bug in your telephone, while they are only allowed to tap your phone and not to enter your house.

It Is Really About Safeguards
Planting a tap is very easy for the police. It requires a crime with a penalisation of at least four years and permission of the public prosecutor. Additionally, third parties may be tapped, if there is enough evidence to connect them with the suspect. I should note that, in practice, this is slightly more complex, e.g. whether it is short or long term tapping matters.

If the competence for remote search is derived from the competence to wire-tapping, the same safeguards will hold. However, we may want stricter rules for the remote search of information systems. Especially the fact that when you regularly communicate with a criminal, it may be reasonable to put the tap at your end, should not be translated to the competence of remote search.

Get Your Tinfoil Hats!
The more paranoid argue that if the police is allowed to enter information systems, it is a good thing for the government that vulnerabilities exist in computer software or backdoors that allow them to enter. Although this seems rather extreme, it seems that, for example, the FBI would like to have backdoors in Facebook, Skype and comparable software.

All privacy concerns aside, the major problem with allowing easy access to justice authorities is that it also allows easy access to criminals and the implementing software vendors. We have all seen this at work in the German Bundestrojaner, which could be hijacked with little effort. This shows us that, whether the fear for secret backdoors and vulnerabilities is unjustified or not, it is never a good idea to have them. Nevertheless, this does not mean that remote search is a bad thing, but merely that great care is required to implement it.

Remote Search: We Need Clarity
The problem of remote search by justice authorities is that the current situation is unclear. On the one side this leads to paranoia, and on the other side to policemen that do not know what they are allowed to do. Therefore, it is important that we start the discussion about remote search by justice authorities. It is time to set the boundaries and safeguards.

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