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DENMARK: Report Issued by Jørn Vestergaard, Professor Em [email protected] Linkedin – Formobile- project Twitter – @Formobile2019 www.formobile-project.eu IMPORTANT TO READ BEFORE ANSWERING THE QUESTIONNAIRE: The FORMOBILE project is aimed at creating better mobile forensic tools to help combat crime more efficiently, enlarging the capacities of both first responders, common forensic laboratories and highly specialised laboratories and experts by providing them with better tools to acquire, decode, and analyse data coming from mobile devices. The majority of these tools will be integrated in the existing suite of MSAB software (XRY). Please refer to the FORMOBILE website for more information and especially to the work package breakdown of WPs 4-6: https://formobile- project.eu/project#.mod-wp-steps. It is essential to have this background to be able to accurately answer this questionnaire. One of the aspects of the FORMOBILE project is to make sure that these tools are able to be used in the EU for the collection, decoding and analysis of information from mobile phones in a way that makes the obtained evidence admissible in court (“from crime scene to courtroom”). Hence, the questions that make up this questionnaire in essence aim to understand how mobile forensic tools aimed at retrieving, decoding and further analyzing information from a mobile device (e.g. a smartphone), are allowed in your jurisdiction under the applicable criminal law. We are especially interested in: whether technical measures may be used (and to what extent) to bypass security; to what extent the data on the mobile device may be read, searched, used and copied etc.; what the formal conditions are for accessing data on a mobile device; who must order such actions and in what level of detail the mandate must describe the authorized actions; in what scenarios this is permissible (only in certain scenarios, only if the phone belongs to the accused?), as well as the potential differences between scenarios; existing limits on the access to or further analyzing and use of the data on a mobile device. [email protected] Linkedin – Formobile- project Twitter – @Formobile2019 www.formobile-project.eu In addition, we want to know under what conditions information on the Cloud can be accessed and if this is possible by technical means. We are also interested in any human rights’ impacts, existing guidelines and issues in practice, existing case law and any other elements you deem relevant. As we want to be able to compare answers across jurisdictions, we have drafted this request for information in a questionnaire format. This, however, does not mean we are looking for simple yes/no answers. Most questions are open questions and naturally invite an elaborate answer. Some questions may perhaps in theory be answered as yes/no question, but please give as much guidance and details as possible within every question, to enhance our understanding of the legal system in your jurisdiction. Always cite the provision of the law or the case law you are relying on in providing an answer and please try to be exhaustive or at least as complete as possible. If you are relying on practical guidance or other informal rules and practice, please also refer to this and, if documentation on this is available, provide the link to where we can find this documentation. Please feel free to give additional guidance in the comments section at the end, in case you feel we did not sufficiently cover certain elements throughout the questionnaire. [email protected] Linkedin – Formobile- project Twitter – @Formobile2019 www.formobile-project.eu The questionnaire is made up of 61 questions, in the following sections: Introductory questions Section 1: Criminal procedure when searching/reading mobile devices, seizing mobile devices and for acquisition of data on mobile devices Section 2: Criminal procedure rules on analysis of data from mobile devices Section 3: Admissibility of evidence before court Section 4: Interpretation and presentation of evidence from mobile forensics before the Court Section 5: Implications of the use of mobiles forensics on the role of the different parties in the trial Section 6: Comments [email protected] Linkedin – Formobile- project Twitter – @Formobile2019 www.formobile-project.eu DENMARK: Report issued by Jørn Vestergaard, Professor Em. of Criminal Law Introductory questions: 1. Question: Please identify your organisation and your individual position? Answer: Indication of length of answer: one line. University of Copenhagen, Faculty of Law, Professor Em. of Criminal Law 2. Question: Where is your organisation based? Answer: Indication of length of answer: one line. University of Copenhagen 3. Question: Do you have a legally defined term for a “mobile device”? If yes, what kind of devices are included within it? (e.g. Smartphones, Tablets, Smartwatches, Cameras, MP3- players, Navigation devices, Drones) Answer: Indication of length of answer: couple of lines. In the Administration of Justice Act/ the Procedural Code (retsplejeloven), varying terms are utilized in the chapters regulating the use of forensic measures.1 In relation to acquisition from Service Providers of teledata in criminal cases, the term “telephones or other similar communication devices” is used as a common denominator for 1 A consolidated online version of the Act can be read here: https://pro.karnovgroup.dk/document/7000840230/1?frt=consolidated&hide_flash=1&page=1&rank=6 See also Langsted, L.B. et al: Criminal Law in Denmark, Fifth Edition, Wolters Kluwer 2019. [email protected] Linkedin – Formobile- project Twitter – @Formobile2019 www.formobile-project.eu devises that communicate via telecommunication, e.g. cellphones, tablets and smartwatches. Furthermore, the term “gps eller et andet tilsvarende apparat” [gps or another similar device] is used, see examples below. The Procedural Code regulates wire-tapping by use of the term “aflytte telefonsamtaler eller anden tilsvarende telekommunikation” [interception of telephone-conversation or other similar telecommunication], cf. § 780(1)(1). The term “anden tilsvarende telekommunikation” even covers incoming e-mail. The Procedural Code even regulates police monitoring of telecommunication between “telefoner eller andre tilsvarende kommunikationsapparater” [telephones or other similar communication devices], cf. § 780(1)(3 and 4) and § 786 regarding “teleoplysning” [teleinformation]. Further, the Procedural Code regulates teleobservation by use of the terms “mobiltelefon” [mobile phone], cf. § 791(a)(5)(1) and “gps eller et andet tilsvarende apparat” [gps or annother similar device), cf. § 791(a)(5)(2). Finally, the Procedural Code regulates data electronic extraction from “et informationssystem” [an information system], including smart phones, cf. § 791(b) regarding “dataaflæsning”. Section 1: Criminal procedure when searching/reading mobile devices, seizing mobile devices and for acquisition of data on mobile devices Question: Mobile devices (e.g. a smartphone) may enter investigations in a variety of scenarios. A suspect or a witness may have a smartphone on them during questioning or at the scene, mobile devices may be found during the search of a home or other premises, a suspect caught in the act may have a mobile device in use etc. We want to know for all these scenarios (and others you may be able to identify) what the applicable national rules are, namely answering the following questions: [email protected] Linkedin – Formobile- project Twitter – @Formobile2019 www.formobile-project.eu Mobile device not seized 4. Under what circumstances can a mobile device be read or searched without seizing it? Telephone tapping requires a court order, except if the matter is urgent (periculum in mora). The main conditions are (1) that there is probable cause to suspect communication to or from a suspect, (2) that such inception is important for the investigation, and (3) that (a) the offence is punishable by imprisonment for 6 years or more, (b) involves a crime against the state or terrorism, or (c) involves specific offences listed in the law, cf. § 781(1-3). A court order concerning electronically reading or “searching” (dataaflæsning) a mobile device [a communications-system] without seizing it requires probable cause to suspect that it is used by a suspect in relation to a planned or committed offence punishable by imprisonment for 6 years or more (or a terrorist offence or a state crime). A court order is required, except if the matter is urgent (periculum in mora). The measure must not be disproportionate in relation to the intrusion and inconvenience for the suspect. Cf. § 791(b). 5. Are there any limits to this search (e.g. core area of private life, privacy limits, limits defined by the crime, limits defined by the order/warrant)? If so, how precise are these/must these be defined? With regard to telephone tapping, the principle of proportionality must be respected, cf. § 782(1). If the investigation concerns crimes against the state, terrorism, or other particularly serious offences, the court can allow that not only a specific telephone is intercepted, but that all devices used by the suspect are tapped, cf. § 783(2). Telephone tapping is prohibited with regard to communication between a suspect and a priest, a lawyer, a physician, etc., cf. § 782(2). If the matter is urgent and the measure has been initiated by the police without a court order, the court must immediately and within 24 hours be informed in order for the court either to approve the measure or to issue a proper court order. If the court finds that the measure should not have been enacted, the Ministry of Justice must be informed, cf. § 783(4). [email protected] Linkedin – Formobile- project Twitter – @Formobile2019 www.formobile-project.eu With regard to reading a mobile device (dataaflæsning), conditions equivalent to those regulating ordinary search applies, cf. § 791(b)(3 and 4). The court order must stipulate a timeframe for the search. The period must be as short as possible and not exceed 4 weeks. The court may extend the timeframe by maximum 4 weeks at the time.
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