Do our smart devices have the right to remain silent?
On 20 July 2017, a burglar sneaked into a family's flat in Hungary, grabbed whatever valuables he could find, and disappeared without a trace. At least that's what he thought. Unfortunately for the burglar, his crime was recorded by the family's baby monitor.
The family handed the video over to the police and the burglar was identified. In this case, it was clearly adequate for the police to use the footage in making an arrest. But what if the footage had been stored on an external server operated by a third party? Could law enforcement authorities request its disclosure even if it was unclear that evidence had been recorded?
Under the current data protection regulations, the answer generally would be yes. Law enforcement authorities would not only be entitled to request such information from the server operator, but also impose a fine for non-compliance.
But with the growing popularity of smart devices that collect and transmit information in our homes, the real question is whether there are clear boundaries for such data requests: Do our smart devices have the right to remain silent? Under the current data protection regulations, there is no clear answer. As it now stands, the law enforcement authorities are only obliged to describe the subject and purpose of their data requests, but generally do not have to satisfy any further requirements.
Although our private and family life, our home and our thoughts are protected by data protection regulations, they are not absolute rights. These rights may be restricted in accordance with the principle of proportionality, meaning they must be balanced against other rights and legitimate interests. Thus, in order to ensure that any restriction is proportionate, law enforcement authorities must at least evidence that there are no other options to obtain information for their investigation. Additionally, authorities shall also show the increased importance and necessity of their data requests.
Protecting the data collected by our smart devices, setting the virtual walls of our private homes remains one of the core tasks of the new Hungarian Act on Criminal Procedure that enters into force in July 2018. Despite that the principle of proportionality is already integrated into the new regulations, the detailed rules of data collection are still to be specified by separate legislative provisions that are expected to be adopted in the near future.
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