While the ECtHR has not yet ruled on the most recent investigation techniques such as hacking, open-source investigation or predictive policing, it has nevertheless set minimum safeguards in relation to other investigatory developments, such as digital search and seizure, location tracking and bulk interception of communications. In this article, we conduct a brief overview of recent ECtHR jurisprudence concerning several types of digital investigation powers. In our overview, we place particular – although not exclusive – focus on post-2010 case law and organise it in relation to the five types of digital powers on which the Court has recently ruled: the creation of police databases, digital search and seizure, location tracking, the collection and processing of traffic data, and bulk interception of communications. A notable omission in our examination is case law concerning targeted interception of communications by the police. This is due to the fact that most recent ECtHR case law focuses on ‘bulk’ interception of communications conducted by intelligence agencies, rather than ‘targeted’ interception conducted by the police. Considering the increasing importance of specialised police units that are employing preventive and bulk investigation techniques for the purpose of gathering police intelligence, we find it important to present the newly expanded safeguards concerning mass surveillance as well.

The goal of this article is twofold. First of all, we aim to provide a broad overview of the current state of ECtHR jurisprudence concerning five types of digital investigation powers. Such an overview is needed because it explicates the ECtHR-requirements for regulating these powers; something that is relevant for all European countries that are in the process of developing adequate legal bases for new digital powers. Furthermore, such an overview enables scholars and regulators to draw conclusions for the regulation of other digital investigation powers, including those that are yet to come. In the first part of this article, we therefore examine recent ECtHR case law concerning: (1) databases and personal data, (2) digital search and seizure, (3) location tracking, (4) traffic data and (5) bulk interception of communications.

The second goal of this article is to draw conclusions from this case law for the upcoming regulation of digital investigation powers in the Netherlands. The draft new Code of Criminal Procedure (draft CCP) namely provides for specific regulation of digital investigation (with some exceptions) for the first time. In general, the draft CCP is founded upon the requirements stemming from Article 8 ECHR. However, the draft explanatory note does not include any concrete assessment against the background of recent ECtHR case law regarding digital investigation. In the second part of this article, we therefore examine the manner in which three types of digital investigation powers – the investigation of data, open-source investigations and location tracking – have been regulated in the draft law, and whether this implementation has been done in accordance with ECtHR case law. Our analysis of the draft provisions regarding digital investigation does not aim to be comprehensive. On the contrary, the aim is to draw attention to those aspects that stand out on the basis of ECtHR case law, including the specificity of the legal basis, the need of end-to-end safeguards and the importance of ex ante safeguards. We conclude by emphasising the urgency of specific regulation of digital investigation powers – and the modernisation of the CCP in general – and by highlighting the most notable implications from ECtHR case law from which the modernisation process would further benefit.

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