Surveillance, Criminal Procedure, and Regulatory Connection: The Case of Sewage Monitoring

Abstract

This paper analyses the implications of a new form of surveillance—sewage monitoring—for criminal procedural law. Current law has not been written with a view to covering novel, technology-enabled forms of covert data acquisition, posing a challenge of regulatory connection. To what extent are new surveillance methods, such as sewage monitoring to combat drugs production, covered by existing legal frameworks? This question is answered through analysing the shifting nature of criminal investigation, reflecting on how to interpret laws not written for new technologies, and assessing checks and balances needed when law enforcement employ sewage monitoring in criminal investigation. The analysis is illustrated with reference to the legal systems of Germany, Poland, and the Netherlands, using legal doctrinal research. The main findings are 1) that sewage monitoring is not particularly intrusive as such, but constitutes a new form of investigation that legally differs significantly from traditional surveillance powers, 2) that comparable methods do not provide unequivocal analogies that could serve to find a legal basis, 3) that functionality of evidence collection poses legal and procedural challenges, which may have implications for the covertness of the method, and 4) that even if only used as a diagnostic tool, some form of transparency and oversight will be needed to legitimate the non-negligible potential interference with fundamental rights and to enable those subjected to sewage monitoring to contest the usage in court.