Editorial: A trialogue on regulating data-driven criminal procedure

Abstract

This editorial introduces a special issue on the challenges of regulating data-driven criminal investigations, in light of the interplay – or rather, the lack thereof – between criminal procedure law and data protection law. The aim is to bring together scholars from both fields, to facilitate mutual understanding and to present ideas on better aligning these bodies of law to form a comprehensive normative framework. In data-driven investigations, police typically assemble large data sets to build an information position, followed by automated analysis to detect patterns and find evidence of potential crimes. The shift from traditional targeted, “case-seeks-evidence” investigations to data-driven untargeted, “evidence-seeks-case” investigations challenges the current normative framework. Discussing this challenge and the insights offered by the six contributions to this special issue, the authors identify multiple problems: people in criminal law lack knowledge of and therefore undervalue data protection law; data subject rights do not function well in the criminal procedure context; there may be an increasing emphasis on instrumentality in criminal law, at the cost of legal protection; criminal law strongly focuses on legal protection of suspects, particularly during trial, and does not cope well with investigations that never end up in court, nor with the protection of innocent citizens whose data are now also pervasively processed as by-catch in criminal investigations; and the law has relatively strong norms on data collection, but not on data analysis. The way forward lies in evolving towards a system that does not only protect suspects and victims but that systematically incorporates the rights of innocent thirds; developing an integrated and conclusive system of data processing rules in law enforcement, including data analysis and on-going reuse of data; and establishing a system of supervision that is adequately equipped to deal with the new reality of data-driven criminal procedure.