New Rules for Handy Information in Österreich

The process of confiscating cell phones will become significantly more complicated and laborious. It will also become more difficult to make random discoveries on data carriers, but they can still be used. Defendants have expanded defensive options.

First of all: “cell phone confiscation” is actually inaccurate and this is due to the specific case that led to the repeal of the old regulation or the debate about cell phone confiscations among politicians. This concerns in particular all data carriers such as laptops, computers, etc., or mainly the data stored on them. Also not included are the (rather rare) cases of cell phone confiscation where it is only fingerprints (and not data) on the device. The least controversial and clearest is the innovation that data carriers must no longer be secured in the future, but must be confiscated. Unlike before, court approval is required for this, which requires more human resources in the judicial field. The confiscation itself is ordered by the public prosecutor based on court approval and executed by the judicial police.

There are exceptions to this rule: the judicial police can obtain so-called “one-off data” without this procedure. This involves video surveillance for a defined period of time, for example in a square or in front of a store. In addition, the criminal police can secure data carriers without the public prosecutor or the court in the event of imminent danger – for example if there is a risk of loss of the data carrier or data, or if a suspect on the run may be found. in this way. In these cases, the public prosecutor’s office must be informed subsequently, who must then obtain the agreement of the court. If this is not granted, the results obtained must be destroyed. Back to normal: in the order and court approval, it will be necessary to define in the future which categories of data and data content are to be confiscated and for what period this concerns. Subsequently, an “original backup” and a “working copy” are created. On this basis, the data is processed by forensics – the public prosecutor’s office then only receives the results covered by the approval.

Random discoveries are still possible and can be used, but they are made more difficult. For example, if a defendant, who is currently under investigation for fraud, has abusive language or Nazi material on his cell phone, the prosecution only sees it if this information has been processed within the framework of the court approval. Whether they come from a time before the approved period remains unknown. Possible loophole: if the data covered by the processing already provides indications of other offenses, the public prosecutor can request new authorization and set a new deadline, which is assessed based on the working copy.

Important: Evidence can only be used if the investigative measure has been legally ordered or approved. It is also new that defendants (and also victims) have the possibility to request their own search parameters – for example to exonerate themselves or to obtain further guidance for pursuing their own claims. Both also have the right to view the results of data processing on their confiscated devices. Data that cannot be relevant to criminal proceedings or that cannot be used as evidence must be destroyed.

This article has been machine translated, read the original article here.