Lorena Bachmaier Winter on the eucrim-site published the article Rethinking Procedural Safeguards in the Digital Age. Bulk Surveillance, Artificial Intelligence, and the Need for Responses at the EU Level.
The introduction:
This article examines the impact of digitalisation, mass surveillance, and artificial intelligence (AI) on procedural safeguards in criminal proceedings in the context of the developments in the EU’s Area of Freedoms, Security and Justice. The author argues that contemporary surveillance capacities are changing the way in which prevention, intelligence, and criminal investigation are related to one another. Prior to the commencement of formal proceedings, individuals may be classified as “persons of interest” or “pre-suspects” via bulk data processing, algorithmic risk assessments, and communications interception, usually without the safeguards attached to suspect status. The article begins with an overview of ECtHR case law regarding secret and bulk surveillance, as well as the interception of communications for security purposes. Next, the focus is put on the CJEU ruling in EncroChat and its implications for transnational electronic evidence, access to communications of non-suspects, and the defence’s ability to challenge the lawfulness, authenticity, and integrity of data obtained from encrypted platforms.
The author draws attention to the fact that the analysis of bulk data, coupled with AI capacities, may weaken the requirement of prior suspicion and undermine adversarial guarantees when data gathered outside of criminal proceedings is later used as incriminating evidence. She concludes that European legal systems must rethink procedural safeguards for the digital age, strengthening controls over reasonable suspicion and regulating algorithmic suspicion and mass data analysis. They must also address the role of private technology companies in criminal investigations. This would best be achieved at the EU level, as the bloc continues to develop its Area of Freedom, Security and Justice, always seeking to strike the right balance between fighting crime efficiently and ensuring procedural safeguards.
Relevance for AML/CFT
The article is focussed on criminal law, but also applies to anti-money laundering (AML) legislation and legislation against financing of terrorisme (CFT) and international sanctions. The new EU legislation on the matter (the AML Package) contains weak safeguards against errors and the abuse of power and leaves legal protection to the Member States (that in the Netherlands is inadequate).
