Access to Data for Law Enforcement - The Importance of Ethical Decision-Making

Growing Reliance on Electronic Data by Law  Enforcement

The 2024 edition of the SIRIUS EU Electronic Evidence Situation Report, published jointly by Eurojust, Europol and the European Judicial Network, reflects on the evolving legislative framework and the growing reliance on electronic data in criminal investigations. Social media, messaging apps and crypto exchanges remain the most relevant online services in criminal investigations.

Challenges for Law Enforcement

Most legitimate electronic communications service providers include privacy protecting measures in their products. While this is rightly viewed as a positive development, there is growing evidence that criminals are taking advantage of such tools to hide their identities, market their criminal products and services, effectively avoiding detection, investigation and prosecution. The Europol Internet Organised Crime Threat Assessment (IOCTA) 2024 indicates that criminals are increasingly moving to legitimate end-to-end encrypted platforms.

As a result of these developments, access to data for law enforcement purposes has emerged in recent years as a key challenge for criminal investigations and prosecutions. In responding to law enforcement demands, organisations are required to consider their legal and ethical responsibilities, particularly in striking a balance between a citizen’s right to privacy and civil authorities’ right to seek the information.

Many companies and service providers are hesitant to disclose data to law enforcement without clear and enforceable legal obligations to do so, due to the legal uncertainty associated with voluntary cooperation.

Rights to Privacy and Data Protection

In today's digital age, the public are rightfully concerned about their privacy and the security of their personal data.  Article 8 of the European Convention on Human Rights (ECHR), the EU Charter of Fundamental Rights and many national constitutions recognise that everyone has the right to a private life, and that this includes a person’s communications.  Article 10 ECHR protects the right to freedom of expression, while Article 8 of the EU Charter of Fundamental Rights lays down the right to data protection.

Competing Rights

The rights to privacy and to the protection of personal data are not absolute rights and can be subject to limitations under the law. Law enforcement authorities (LEAs) may not interfere with the exercise of these rights except where such interference is in accordance with the law, respects the essence of the rights and is necessary and proportionate in a democratic society. Subject to those conditions, the rights to privacy and to the protection of personal data can be limited, including in the interest of national and public security and for the prevention, investigation, detection and prosecution of crime.

The Importance of Ethical Practices in the Balancing of Rights

Organisations wishing to build and maintain trust, need to place a high priority on ethical practices, responsible decision-making and transparency. These fundamentals, which incorporate the principles of legality, necessity and proportionality, are especially important when considering the issues around the disclosure of data to law enforcement.

The Guiding Principles of iTrust 6A™

By using iTrust 6A™ organisations can prioritise ethics and transparency in decision-making when disclosing data to law enforcement. By mapping specific legal and policy considerations this empowers decision-makers to make and record informed judgements on the balancing of competing rights - demonstrating to their customers they are trustworthy and to regulators they are compliant and committed to protecting user data.

For more information, contact our expert team here.