Abstract
This paper explores the relationship between open-source intelligence and privacy in the context of civilian criminal investigations. The purpose of this paper is to reach a better understanding of the way in which privacy can be protected in a changing landscape of criminal investigations. The existing legal mechanisms that could apply to open-source intelligence (OSINT) and civilian criminal investigations are discussed but a lack of suitable regulations is identified. This leads to privacy concerns and a new type of vigilante justice, which yield potentially dangerous consequences for our society. This paper also discusses the legal, political and ethical implications of OSINT on the traditional privacy framework with the use of a case study. A paradoxical situation is identified, in which publicly available information is thought to be free from privacy concerns based on the fact that it is publicly available, although the information can be (sensitive) personal information and therefore inherently private. A theoretical solution is proposed to fill this lacuna in the law, consisting of a combination of Nissenbaum’s theory on privacy as contextual integrity and Koops’ theory on a new privacy proxy of a digital home right. This could provide legal privacy protection in civilian criminal investigations using OSINT, creating a just balance between investigation interests and privacy concerns. This research can serve as a guideline when drafting future privacy regulations regarding open-source intelligence and civilian criminal investigations.
Highlights
The role of civilians in criminal investigations is changing due to our increasingly digitalized society.[1]
This paper explores the relationship between open-source intelligence and privacy in the context of civilian criminal investigations
Afterwards, the horizontal direct effect of fundamental rights[26] is discussed in light of the casestudy, to continue the evaluation of whether privacy violations occurred in Bellingcat’s research. This is important in light of the research question as it will exemplify, with the use of a case study, what the difficulty is in assessing whether civilian criminal investigations using open-source intelligence (OSINT) impact the privacy of their suspects
Summary
The role of civilians in criminal investigations is changing due to our increasingly digitalized society.[1]. 17 Gijs Beukers, ‘Onderzoekscollectief Bellingcat komt naar Nederland’ De Volkskrant at: accessed 27 March 2019; Menno Sedee, ‘Bellingcat-oprichter: ‘Wij Helpen information on platforms like YouTube, social media and Google Earth These tools can be used to answer questions on who, what and where a certain bombing, attack or other event took place.[18] Interestingly, in comparison to traditional criminal investigational research by the police, Bellingcat publishes all of its methods and findings in detail online. Afterwards, the horizontal direct effect of fundamental rights[26] is discussed in light of the casestudy, to continue the evaluation of whether privacy violations occurred in Bellingcat’s research This is important in light of the research question as it will exemplify, with the use of a case study, what the difficulty is in assessing whether civilian criminal investigations using OSINT impact the privacy of their suspects. accessed 28 March 2019. 26 The horizontal direct effect of fundamental rights means that fundamental rights
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