The report shows shortcomings in the rule of law and a significant need for reform; ÖRAK presents a catalog of reform proposals and calls for rapid implementation
Vienna (OTS) – As part of a press conference on the topic “Securing and assessing data and data carriers – deficiencies and reform proposals,” the Austrian Bar Association (ÖRAK) presented an index of reform proposals on Monday “to improve the rule of law in the region for securing communication devices such as mobile phones, laptops or tablets.” To lead the digital age”, said ÖRAK President Dr. Armenak Otogyan noticed at the beginning. The demands of the legal profession are based on a law promulgated by the University of Vienna by Univ.-Prof. Dr. Ingeborg Zerbes and Mag. Shirin Ghazanfari (Institute of Criminal Law and Criminology, University of Vienna), which deals in detail with the current legal situation, deficits in the rule of law and reform proposals and contains a specific legislative proposal.
Otogyan: “There is an urgent need for action to raise the rights of the suspects to a level that can be justified under the rule of law”
Securities relate to individual things and can also be done independently of home inspections. Currently there are only very low requirements for this measure, because the enforcement powers of the investigative powers that apply today date back to a period before “big data”, smartphones and modern information technology, ”explains ÖRAK Vice President Dr. Bernard Fink. “The investigative power does not You need judicial approval for the seizure, and it doesn’t have to be highly suspicious.”
“Securing communication devices ultimately leads to the same and even more data exposure than monitoring communications (through so-called “message monitoring”). However, their requirements are much lower: the only possible evidentiary value of the suspect data on the secured data medium and an order from the Public Prosecutor’s Office are sufficient; There is no urgent suspicion and no minimum severity of the crime required; There are no regulations for dealing with accidental finds. Moreover, in some constellations there is a lack of judicial oversight to protect professional confidentiality rights such as editorial secrecy or legal secrecy. But above all, the suspect and his lawyer are not informed after seizing the data that the prosecution authorities now have in their hands. Unlike surveillance, there is no legal hearing,” Zerbes explains the shortcomings of the current legal situation. “There is an urgent need for action on the part of the legislature in order to raise the rights of the accused to a level that can be justified under the rule of law,” says ORAK President Armenak Otogyan, summarizing the current findings.
Higher interference limits when securing communication devices
The report is not intended to render inaccessible data that law enforcement authorities want to use as evidence. However, Zerbes advocates that the rules for securing communication devices be adapted to the legal requirements that are also provided for monitoring communications (monitoring messages). Above all, this may include presenting urgent suspicion of a criminal offense with the threat of imprisonment for more than one year as a cause. Access (previously disputed) to databases from external storage locations such as clouds should be excluded; Such access is possible anyway by monitoring communications.
Limitations on the usability of serendipity and transparency discoveries to suspects
Also based on the communications monitoring model, the report also suggests limiting the possibility of serendipitous discoveries being used for criminal acts that could also have led to such a takeover.
Then the crux of the proposal relates to the vast excess of data that can be accessed when a smartphone or other communication device is seized. A person affected by the seizure does not have an overview of the data—contacts and content, photos, videos, location recordings, internet pages clicked, etc.—that are stored visually or reconstructed on their communication device. The reading and evaluation process must therefore be organized in such a way as to make it transparent to the person concerned: during certain (overlapping) periods (in the case of encrypted data up to 14 weeks), they must receive bit-exact copies of the data vectors on which law enforcement conducts their evaluation. Because only then does the person concerned have the opportunity to request that additional data that the Public Prosecutor’s Office initially found irrelevant in the file or that data that, in its opinion, do not relate to the suspicion against him, be deleted. A separate file should be created for accidental detections.
Restrict defendants’ access to files and recognize the defendant’s right to object to protect professional confidentiality rights
In order to protect the privacy of the person concerned, it is proposed to extend the restriction on access to files for victims, private parties and prosecutors, which is already possible under the current legal situation, to long-term accused persons. Because their interests are not negatively affected. This can also reduce the risk of media release and thus exposure of suspects – which is beyond the public’s interest in the information.
In addition, according to Zerbes, the defendant should also be able to obtain a court decision on examination of documents covered by attorney-client privilege or press confidentiality, for example, through the objection to custody.
The Orak Fund calls for far-reaching reforms in data security, data carriers, and data valuation
“It is time to fundamentally reform regulations for securing data carriers, which date back to the digital stone age and are now questionable in terms of the rule of law,” Otogyan explains and calls for the reform process to be initiated on the basis of this report, which reveals significant shortcomings. In the current legal situation with regard to the rule of law. “We appeal to the Minister of Justice and the federal legislature to quickly initiate a corresponding legislative draft and thus eliminate a very important constitutional problem,” Otodiyan said.
The Ras Al Khaimah Securities Authority calls for the following points to be taken into consideration in any case:
- Raising the requirements for securing communication devices by introducing special provisions based on existing regulations on monitoring messages
Raising the minimum threshold for primary offenses to offenses punishable by more than one year in prison and having a strong suspicion, and introducing justified judicial consent as a precondition.
- Develop clear systems to deal with accidental discoveries
Restricting the usability of serendipitous discoveries to criminal acts that could also have led to such capture.
- Transparency to suspects regarding seizures
All of the seized fragments (the complete dataset)—a bit mirror, a copy of the later recovered data and the “saved” volatile data—must be provided to the accused on one (or more) data carriers.
- Shorten the duration of the evaluation process by introducing binding deadlines
The person affected by the data carrier’s insurance must be given a copy of the entire data immediately, but no later than 14 days later. An extension of a total of eight weeks should only be possible under special circumstances, and in the case of encrypted data a maximum of fourteen weeks.
- Restricting access to the files of other defendants – similar to the legal situation with respect to victims, private parties, and private prosecutors – as long as their interests are not prejudiced
- Acknowledgment of the defendant’s right to object to the right of confidentiality for a person subject to professional secrecy
In order to protect the rights of professional secrecy, the accused (and the outside assistants of the person responsible for professional secrecy) must be given an associated right of objection to the seizure. The data broker must then be sealed and filed with the court. For practical reasons, the accused must first be given the duty of identifying himself and thus sorting out the material subject to confidentiality. A person with a duty of professional confidentiality should be able to view previously screened material. The court then decides, after review, which of the screened data is subject to professional confidentiality. In addition, the accused should be given the right to object to the seizure, regardless of where the classified information is located. Purpose of the regulation: Information subject to professional confidentiality should not reach the investigative authorities.
Both Otojian and Fink, as well as Zerbis, stress that the analyzes and demands made at the press conference are not a statement or assessment of local political events of any kind. Zerbes has been dealing with the subject since 2014. The opinion was written in complete independence. “Both the report and the proposed solutions derived from it relate to a long-standing imbalance in practice that is detrimental to the defense. Now, for the first time, it is possible to draw concrete reform proposals from this complex and multifaceted topic.” Otogyan in conclusion.
There are 6,900 lawyers and 2,300 trainee lawyers in Austria. Attorneys are highly trained, independent legal representatives and advisors who are committed and responsible only to their clients. The primary mission is to protect, defend and enforce the rights of individuals. Lawyers are obliged to maintain absolute confidentiality towards third parties, which also guarantees complete independence from the state. Lawyers are represented by the bar associations of the federal states and the umbrella organization, the Austrian Bar Association (ÖRAK), with its headquarters in Vienna.
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