Sewage Monitoring for Criminal Investigation and the Protection of Home Life
71 Pages Posted: 23 May 2019
Date Written: April 24, 2019
The fundamental right to inviolability of the home has traditionally been interpreted to protect people from physical intrusions into their homes. The growing use of technologies for non-physical intrusion into the home, enabling surveillance from the outside by law enforcement, makes home life more transparent without investigating officers having to physically enter. Sewage monitoring is an emerging new form of surveillance of the home from the outside, which potentially impacts the level of protection of home life in practice and in the law. The purpose of this paper is to survey forms of surveillance of the home similar to sewage monitoring, describe how German, Polish and Dutch law regulate these forms of surveillance, and suggest improvements to the legal framework so that people’s fundamental right to protection of their home life remains sufficiently safeguarded. We group surveillance of the home from the outside into five groups: waste monitoring, monitoring of emanations, audio-visual surveillance, access to data in the home, and out-of-home access to data about home life. Our analysis shows that visual surveillance, acoustic surveillance, and access to data in and about the home are relatively well-regulated, usually with a sufficiently clear legal basis and considerable safeguards, thus offering generally adequate legal protection. In contrast, regulation of domestic waste (garbage and sewage) monitoring and monitoring of emanations from the home (heat, smell, electromagnetic waves) is less clear. Although these surveillance measures seem less serious interferences with inviolability of the home, law-makers should clarify the legal basis for these methods and the conditions applying to them. We conclude that legal systems will need to develop ways to more clearly distinguish between minor, more than minor, and very serious interferences with inviolability of the home. The Dutch systematicness requirement and the German protection of the core area of private life are useful starting points for developing a more comprehensive normative framework that can deal with non-physical intrusions of the home as well as current legal frameworks regulate physical intrusions of the home.
Keywords: privacy, sewage monitoring, surveillance, drugs, home life, home protection, fundamental rights
JEL Classification: K14, K42
Suggested Citation: Suggested Citation