Searches and Seizures in the Digital Age—The Need For a Prior Independent Oversight Among International and European Standards

Resumen

The relentless march of technological progress has significantly streamlined the collection, transmission, and electronic storage of personal information, reshaping the landscape of searches and seizures of electronic devices. This digital evolution allows prosecuting authorities unprecedented access to vast volumes of information stored on computers, raising concerns about the potential misalignment between seized documents and suspected criminal activities. Emphasizing the importance of procedural guarantees for individuals impacted by digital searches and seizures measures, scholars have traditionally advocated for prior authorization from an independent authority. Still, the mere presence of prior authorization does not guarantee non-arbitrary implementation of those measures. Amidst this framework, international standards prefer prior judicial oversight, with “freedom from arbitrariness” test guiding competent authorities in scrutinizing relevant case facts. Conversely, the European legal framework, especially Article 8 ECHR, lacks clarity, risking the fundamental nature of the right to privacy by allowing intrusive measures without prior control.