Unwitting subjects of surveillance and the presumption of innocence

Milaj-Weishaar, Jonida; Bonnici, Jeanne Pia Mifsud

doi:10.1016/j.clsr.2014.05.009

Cited by 17 publications

(3 citation statements)

References 16 publications

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“…The old adage, still brought out by the state, the police or any other interested party: 'if you are doing nothing wrong…' serves to remind us that their desire is to protect us from bad people and that good and law-abiding citizens have nothing to fear from the surges in surveillance or erosion of privacy via the collection and analysis of personal and often sensitive data. Such widespread surveillance undermines the legal presumption of innocence underlying legal process in our society (Milaj and Bonnici 2014), and violates Rawls' equality principle. The problem with this approach is that its adversarial and accusatory tone serves to reduce the debate to one whereby advocates of security 'for your safety' will accuse those voicing concern as being 'on the side of the criminals' thus stifling dissenting voices.…”

Section: Individual Privacy Rightsmentioning

confidence: 99%

PRECEPT: a framework for ethical digital forensics investigations

Ferguson

Renaud

Wilford

et al. 2020

JIC

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PurposeCyber-enabled crimes are on the increase, and law enforcement has had to expand many of their detecting activities into the digital domain. As such, the field of digital forensics has become far more sophisticated over the years and is now able to uncover even more evidence that can be used to support prosecution of cyber criminals in a court of law. Governments, too, have embraced the ability to track suspicious individuals in the online world. Forensics investigators are driven to gather data exhaustively, being under pressure to provide law enforcement with sufficient evidence to secure a conviction.Yet, there are concerns about the ethics and justice of untrammeled investigations on a number of levels. On an organizational level, unconstrained investigations could interfere with, and damage, the organization's right to control the disclosure of their intellectual capital. On an individual level, those being investigated could easily have their legal privacy rights violated by forensics investigations. On a societal level, there might be a sense of injustice at the perceived inequality of current practice in this domain.This paper argues the need for a practical, ethically grounded approach to digital forensic investigations, one that acknowledges and respects the privacy rights of individuals and the intellectual capital disclosure rights of organizations, as well as acknowledging the needs of law enforcement. The paper derives a set of ethical guidelines, and then maps these onto a forensics investigation framework. The framework to expert review in two stages is subjected, refining the framework after each stage. The paper concludes by proposing the refined ethically grounded digital forensics investigation framework. The treatise is primarily UK based, but the concepts presented here have international relevance and applicability.Design/methodology/approachIn this paper, the lens of justice theory is used to explore the tension that exists between the needs of digital forensic investigations into cybercrimes on the one hand, and, on the other, individuals' rights to privacy and organizations' rights to control intellectual capital disclosure.FindingsThe investigation revealed a potential inequality between the practices of digital forensics investigators and the rights of other stakeholders. That being so, the need for a more ethically informed approach to digital forensics investigations, as a remedy, is highlighted and a framework proposed to provide this.Research limitations/implicationsThe proposed ethically informed framework for guiding digital forensics investigations suggests a way of re-establishing the equality of the stakeholders in this arena, and ensuring that the potential for a sense of injustice is reduced.Originality/valueJustice theory is used to highlight the difficulties in squaring the circle between the rights and expectations of all stakeholders in the digital forensics arena. The outcome is the forensics investigation guideline, PRECEpt: Privacy-Respecting EthiCal framEwork, which provides the basis for a re-aligning of the balance between the requirements and expectations of digital forensic investigators on the one hand, and individual and organizational expectations and rights, on the other.

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Section: Individual Privacy Rightsmentioning

confidence: 99%

PRECEPT: a framework for ethical digital forensics investigations

Ferguson

Renaud

Wilford

et al. 2020

JIC

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“…123 In particular, the principle of presumption of innocence functions as a procedural safeguard that operates 'from the very moment a person is charged with a criminal behaviour', that is, prior to the beginning of the trial phase. 124 Yet, because parallel construction re-creates the investigatory trail by 'laundering' intelligence, law enforcement agencies are able to observe the innocence principle ex post facto in a manner that might give the appearance of observing it, while in practice overriding it through parallel construction.…”

Section: The Fourth Amendment and The Protection Against 'Unreasonabl...mentioning

confidence: 99%

Shadowing ‘the exceptional’ behind the ‘ordinary’: mapping a network of intelligence laundering

Ugolini

Smith²

2020

Intelligence and National Security

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Under the imperative of 'prevention', the process of information production for investigatory purposes forms a crossover between intelligence gathering and law enforcement. Digital surveillance programmes collect personal data prior to any probable cause of suspicion, whereas law enforcement activities are concerned with collecting evidence of crimes after the event. When future looking preventative approaches to the prosecution of crimes are forced into the linear, temporal narrative by which criminal investigations unfold, a tension emerges. The article demonstrates the ultimate incompatibility between 'out of the ordinary' intelligence activities and 'ordinary' criminal investigations by unearthing the procedural character behind evidence laundering.The risk posed by individuals and groups deemed to be a threat to society demand investigatory speed and efficiency in order to interdict the dangers they pose. Dismantling organizations and networks, and detecting crimes ahead of their materialization often requires a multi-level approach. Cooperation and information sharing among different agencies is the cornerstone of intelligence-led policing. What the United States Drug Enforcement Agency (DEA) describes as 'investigative intelligence', for example, aims explicitly to collect information on both active and potential targets with the ultimate goal of bringing prosecutions. In the DEA's own words: 'Underpinning this era of intelligence is a new philosophy that states that intelligence drives enforcement'. 1 Through the Special Operations Division (SOD), DEA intelligence analysis supports federal, state and local law enforcement officials in compiling investigative reports. 2 The work of the SOD in collating, analysing and disseminating intelligence derived from multi-agency collection efforts enables criminal cases to be enacted. 3 Armed with legal investigative authority, the SOD is able to build and pursue leads. 'Packed intelligence' derived from the surveillance efforts of intelligence agencies, such as the National Security Agency (NSA), is then passed on to local field offices for real-time enforcement investigations.It is within the intersection of the 'guilds of professionals' 4 of policing and intelligence that the gathering and sharing of data under the imperative of 'crime prevention' takes place. 5 These professional guilds, such as police forces, intelligence agencies and private contractors, utilize methods that between them extract evidence and turn it into 'actionable data'. 6 Therefore, the efforts of the intelligence community and of law enforcement interconnect at the level of information production leading to prosecutorial cases. The complexity of the interactions among official, public, private and clandestine actors, informed as they are by distinct dynamics and processes, however, makes it exceedingly difficult to map those connections on paper.

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“…42 Similarly with the German administrative law, the test for establishing the proportionality of a measure is composed of three steps: (i) appropriateness; (ii) necessity; and (iii) proportionality stricto sensu. 43 The measure that interferes with fundamental rights must be first of all appropriate or suitable to protect the interests that require protection. Secondly, it must be necessary, meaning that no measure less restrictive must be available to attain the objective pursued.…”

Section: The Proportionality Testmentioning

confidence: 99%

Invalidation of the data retention directive – Extending the proportionality test

Milaj

2015

Computer Law & Security Review

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Unwitting subjects of surveillance and the presumption of innocence

Cited by 17 publications

References 16 publications

PRECEPT: a framework for ethical digital forensics investigations

PRECEPT: a framework for ethical digital forensics investigations

Shadowing ‘the exceptional’ behind the ‘ordinary’: mapping a network of intelligence laundering

Invalidation of the data retention directive – Extending the proportionality test

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