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Università di Bologna Universität Basel University of Warwick

Catching Criminals, while Protecting Privacy? Criminal Investigations in the Age of Smart Data – a

Transatlantic Perspective

May 12 – 14, 2016

In Western criminal justice systems the manifestation of “reasonable suspicion” marks the situation when the individual’s position is transformed: a citizen must – if not stand trial – stand investigations that intrude into all spheres of life, including the very private. This fact has given rise to manifold laws, rules, and discussions, on both sides of the Atlantic. Lately, the use of so-called Big Data (or Smart Data) that has been generated privately by individuals using smart technology, has raised new issues. It is the aim of this conference to reflect on how secret surveillance has not only become a very important tool as a means of investigations in criminal trials in the U.S. and most European jurisdictions, but to reflect on how privacy must be understood in an age of smart data and widespread electronic surveillance as well as the implications for criminal investigations. The conference will focus on: A. Concepts of privacy on both sides of the Atlantic, newly defined in the digital age. B. Legal frameworks for surveillance in criminal procedure, including traditional safeguards

protecting the individual’s position. C. The practice of surveillance in different countries. How and when is technological

observation used and “smart data” mined in criminal investigations? What are the forms of surveillance, what safeguards are provided for (at national levels)? How should we frame the debate when it implicates not only the privacy of the citizen but also the secrecy of the state and its investigators?

D. The future of traditional criminal justice tools in the digital age, such as exclusionary rules protecting individual rights in criminal proceedings using evidence from surveillance, and possibly Constitutional guarantees (EU Court of Justice; ECtHR; US Supreme Court).

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EARLY CAREER SCHOLARS SESSION Criminal investigations and the Challenges of the Digital Age Criminal investigators have a variety of new tools available to them, as people’s lives spill over the digital divide and into cyberspace. This session will examine new forms of surveillance and data mining (e.g. using data from social media, Facebook etc) and how they impact on criminal investigations and proceedings. Panelists will examine the changing conceptions of privacy and the ways in which they are protected by substantive and procedural law. They will consider how the law defines and defends individuals’ privacy in data and digital correspondence and the limits it places on investigators access to and use of personal information that is now available thanks to digital technologies. [We might think about whether these panels might be divided between substantive law on privacy versus procedural rights and protections regarding access and use. If so, I might swap Dario and Federico. Session 1 would be about expectations of privacy and the role of government surveillance. Session 2 would be about regulating government intrusion into and use of private data.]

Session 1: Substantive conceptions of privacy in the Digital Age The Social Media Phenomenon: Privacy and Secrecy in an Age of ‘Sharing’ Melina Dobson, University of Warwick Smart Data mining and criminal justice Dario Stagno, University of Basel Session 2: Regulating government surveillance and the use of private data Electronic correspondence and surveillance Federico Cerqua, University of Milan The privilege against self incrimination and the use of smart data in criminal proceedings Laura Macula, University of Basel Admitting Evidence not Disclosed to the Defense? Nathan Gorham - University of Toronto Whistleblowers and undercover investigations Giulia Lasagni , University of Bologna

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MAIN CONFERENCE Session 1: DIGITAL EVIDENCE AND LEGAL PROTECTIONS The Fourth Amendment in an Age of Surveillance: Constitutional Limits on “Big Data” David Gray, University of Maryland Smart Data mining and the Presumption of Innocence Mireille Hildebrandt, Vrije University of Brussels Access to Police-Generated Videos – Who, what, where, when, why, and how? Richard Myers, UNC Chapel Hill Session 2: SPYING FOR JUSTICE? PRIVACY AND CRIMINAL INVESTIGATIONS Effects of surveillance on the rule of law, due process and the presumption of innocence – the Belgium example Paul de Hert, Vrije University of Brussels The concept of privacy in criminal investigations in the age of smart data - a German perspective Beatrice Brunhöber, Humboldt University - Berlin Surveillance in a system lacking of appropriate provisions - The increasing powers of the prosecutor in Italy Michele Caianiello Session 3: PRIVACY AND SURVEILLANCE IN A GLOBAL CONTEXT

You Can't Always Get What You Want: How Will Law Enforcement Get What it Needs in a Post-Snowden Encryption Era? Stephanie Pell, West Point's Cyber Ethics Institute and Stanford Center for the Internet and Society Encryption and the challenges for criminal investigation authorities Sarah Summers, University of Zurich Snowden and the end of secrecy Richard Aldrich, University of Warwick