The Police Hack Back: Legitimacy, Necessity and Privacy Implications of the Next Step in Fighting Cybercrime

Abstract

In an attempt to strengthen the position of the police to fight cybercrime, the Dutch government proposed new legislation giving police agencies new investigative powers on the Internet. This proposed legislation is controversial as it allows police agencies to hack into computers and install spyware. This paper examines the background and contents of the proposed legislation and tries to answer the question to what extent these new investigative powers may result in infringements of the right to privacy and other fundamental rights of citizens, and whether these infringements are justified. The framework for this evaluation, mainly based on the European Convention on Human Rights, focuses on the legitimacy and necessity of the proposed investigative powers. The most important considerations are that new investigative powers are introduced while existing powers are not used adequately and that there are serious doubts as to whether these new investigative powers will be effective.

Keywords: cybercrime, echr, hacking, investigative powers, privacy, technology in policing