Jeanne Mifsud Bonnici

Privacy Issues in the Use of Smart Meters—Law Enforcement Use of Smart Meter Data

This chapter assesses the challenges that the introduction of smart meters in the European Union creates for the right to privacy and data protection of individuals in those situations in which the transmitted data are used by law enforcement authorities for surveillance purposes. In presenting the potential risks and the limitations of the existing safeguards for the protection of the individuals by State interferences, this analysis takes a human rights approach based on the existing European legal framework, case law and doctrine. The legal analysis is augmented by evidence collected from technical/engineering studies that show the interest that smart meter data has for law enforcement authorities. It is argued that the current legal framework is not adequate for addressing the challenges that surveillance via smart meter data creates for the rights of the individuals and that the existing legal gap must be taken into account and used in favour of the protection of the fundamental rights of the individuals.

Redefining the Relationship Between Security, Data Retention and Human Rights

Under pressure to ensure citizen safety following 11 September and the Madrid and London bombings, the EU and member states pushed through a large number of laws empowering law enforcement authorities, at times seemingly at a high cost for citizens’ fundamental rights. The Commission is now in the process of evaluating and reviewing some of these laws, amongst which the Data Retention Directive. This paper argues that, given the operational experiences with the Directive and implementing laws and the legal and political changes that have taken place in the past six years since its entry into force, it is time to redefine the relationship between security needs and fundamental rights regarding data retention. While arguing for this redefinition, the paper also reflects on the chances that this process of redefinition will actually come about: disagreements between EU institutions may, at best, lead to yet another case of opportunistic pragmatism or, at worst, produce no reform at all.

The Way Forward: A Roadmap for the European Union

The contributions describe the final Road Map for the realization of the harmonized framework on Electronic Evidence Treatment and Exchange. It is against a complex background that this “Roadmap” needs to be understood as it takes all challenges, including legal, operational, technical and data protection, forward and proposes ways to take action on a national and on a European level while taking into account various important aspects such as the actors involved. It is important to reiterate that no one action alone will solve the ensemble of challenges as regards the collection, preservation, use and exchange of electronic evidence. The actions need to be taken together for changes to be more effective. The Roadmap is aimed at showing the way forward for creating a Common European Framework for the systematic, aligned and uniform application of new technologies in the collection, preservation, use and exchange of evidence in criminal proceedings.

The European Legal Framework on Electronic Evidence: Complex and in Need of Reform

More and more, “electronic evidence”, defined as “any of potential probative value that is manipulated, generated through, stored on or communicated by any electronic device”, plays an important role in criminal trials. This is not surprising given that most of the activities we take part in daily are captured in an electronic way, for example, our electricity consumption is registered electronically by smart meters, our smart mobile phones store information on our calls, messaging, Internet behavior, lifestyle choices, etc., all of which may have some potential probative value in a criminal trial. Apart from, or because of, its particular nature, electronic evidence is not necessarily linked to the same territorial jurisdiction as where an alleged crime would have taken place or is being investigated. This paper focuses on three aspects of this cross-border nature: (a) where it may be due to the information provider “recording” the information; (b) where the actual digital information is stored; (c) where the crime itself has a cross-border nature. This paper reflects on these three effects of this “cross-border” nature of electronic evidence when regulating electronic evidence in the criminal law process. This paper shows how current national and international legal frameworks are insufficient to meet with the current needs. Further it is argued that solving the current shortcomings is not merely a matter of introducing new agreements but is more complex, needing new theoretical frameworks and the collaboration of a large variety of actors.

Introduction: Opportunities and Challenges for Electronic Evidence

Beyond the different and varied rules that each Member State adopts regarding the admissibility and development of evidence, including digital evidence, elements that in any case must be guaranteed are its relevance and its authenticity with respect to the case being examined. However, these requirements are far from easy to achieve, taking into account some peculiar characteristics of digital evidence, for example, its fragility (easily alterable, damageable and destructible) and its immateriality, namely, the difficulty in associating particular evidence to a physical object: Often it is confused with the device that contains it and therefore closely linked to the concepts of changeability and volatility. This means that the lifecycle of digital evidence must always be accompanied by documentation, always kept up to date, constituting the so-called chain of custody, i.e., the document that describes in detail what happens to digital evidence from the moment in which it was identified as evidence until its presentation before the judge in the trial phase, more specifically, the person who took possession of it to preserve its authenticity, when, where and how, and in what manner. The issue of digital evidence is necessarily interdisciplinary in that it affects different areas: the law in its national, European and international forms, digital forensics, computer science, sociology of law and diplomatics. The latter discipline, perhaps the least known among those mentioned, is focused on “studying the forms that official, legally probative or even constitutive documentation has taken over time”.

From the Persuasion of Theory to the Certainty of Law : A Multi-Jurisdictional Analysis of the Law of Community Policing in Europe

This paper analyses the legal bases of community policing under European Union (EU) law and the national laws of England, France, Germany, Italy, Romania and Portugal. Community policing arguably helps the police achieve efficient policing while respecting the requirements of the rule of law, a founding value of the EU, and can be a form of co-operation between the EU Member States under the EU legal framework for crime prevention. Moreover, the law in the selected jurisdictions supports four elements of the community policing model: (1) the public-police partnership in establishing policing strategies and priorities; (2) the public-police partnership for crime prevention and detection; (3) proactive and preventive policing; and (4) the police as providers of high quality services tailored to improve people’s quality of life. These elements are interrelated and interdependent: their holistic legal articulation is necessary for their effective existence.

Smart Meters as Non-purpose Built Surveillance Tools

This paper analysis the potential use of smart meters as surveillance tools by law enforcement authorities. In assessing the challenges that the introduction of smart meters in the European Union creates for the right to privacy and data protection of individuals the paper takes a fundamental rights approach based on the existing European legal framework, case law and doctrine. The legal analysis is augmented by technical/engineering studies that show the interest that smart meter data has for law enforcement authorities. It is argued that the current EU legal framework is not adequate for addressing the challenges that surveillance via smart meter data creates for the rights of the individuals and that the existing legal gap must be taken into account and used in favour of the protection of the fundamental rights of the individuals.

On forgetting, deleting, de-listing and starting afresh!

Much has been written on the so-called ‘right to be forgotten’ since the European Commission’s announcement in 2010. This flow of academic (and non-academic) writing increased with the European Com...

Reflections on the Use of Data and Bodily Material of Deceased Persons for Medical Research Under Belgian, Dutch and English Law

This paper provides a brief comparative comment on the three contributions of van der Hart-Zwart, Boddez & Nys, and Choong & Mifsud Bonnici included in the present volume. The three contributions reflect on the use of medical information and/or human bodily material obtained before or after death and used for medical research purposes after the death. The present reflective note first looks at the legal shortcomings pointed out in the three contributions, primarily the lack of clarity on whether medical confidentiality survives after death, the non-applicability of the right to private life and data protection after death and the incomplete rules on the use of bodily material of deceased persons for medical purposes. The paper then gradually reflects on the way the three jurisdictions combine attempts at legal certainty and pragmatism to deal with these shortcomings.

The end of the purpose-specification principle in data protection?

The ‘purpose specification principle’, that is, the principle that a citizen needs to be informed why the personal data is being collected and the specific purposes for which it will be processed and kept, is a central protection for a citizen in data protection law. Data sharing practices using personal data collected for one purpose for another purpose are on the increase with clear prejudice to the purpose specification principle. While initially, at law, data sharing was limited to instances where the purpose for which the personal information is used is not incompatible to the purpose for which the same information was collected, there seems to be a trend to extend instances of data sharing with clear disregard to the purpose-specification principle. This paper documents the proposal and withdrawal of two legislative initiatives (the introduction of data sharing provisions in the Coroners’ and Justice Bill 2009 and the Communications Data Bill 2008) to determine whether a clear pattern to end the purpose-specification principle in data protection in the UK is emerging or whether it has in fact seen its end already. The paper argues that while the withdrawal of these legislative initiatives is a positive step even if perhaps instigated by political opportunism, the systematic erosion of the purpose-specification principle will unfortunately continue to increase the possibility of abuse of citizens’ rights.