Gaughran vs the UK and public acceptability of forensic biometrics retention

This commentary provides a response to the European Court of Human Rights ruling in the case of Gaughran vs the United Kingdom on 13 February 2020. The Court ruled that the indefinite retention of DNA, fingerprints and facial images from all convicted adults was disproportionate. Using data from a survey on public attitudes, we examine the public acceptability of the police retention of forensic biometrics from the population.     

Digital Wiretap Warrant: Improving the security of ETSI Lawful Interception

Lawful Interception (LI) of data communications is an essential tool for Law Enforcement Agencies (LEA) in order to investigate criminal activities carried out or coordinated by means of Internet. However, the ability to secretly monitor the activities of citizens also has a great impact on civil rights. Therefore, democratic societies must prevent abuse and ensure that LI is only employed in specific cases with justifiable grounds or a probable cause. Nowadays, in many countries each interception must be authorized by a wiretap warrant, usually issued by a judge. However, this wiretap warrant is merely an administrative document that should be checked by the network or service operator before enabling the monitoring of its customers, whose communications are later handed over to a LEA in plaintext. This paper proposes the idea of employing a Digital Wiretap Warrant (DWW), which further protects the civil liberties, security and privacy of LI by ensuring that monitoring devices can only be enabled with a valid DWW, and by encrypting the captured data so only the authorized LEA is able to decrypt those communications. Moreover, in the proposed DWW framework all digital evidence is securely time-stamped and signed, thus guaranteeing that it has not been tampered with, and that a proper chain of custody has been met. In particular this paper proposes how to apply the DWW concept to the lawful interception framework defined by the ETSI LI Technical Committee, and evaluates how the additional security mechanisms could impact the performance and storage costs of a LI platform.     

视频侦查规范化研究

视频侦查是指侦查机关根据案件的需要,通过视频监控资料的调取、观看、分析和应用四个环节,实现对犯罪的动态分析和综合判断,以发现和确定犯罪嫌疑人、寻找破案线索,为案件侦查提供方向的一种侦查措施。视频侦查已成为继刑事技术、行动技术、网侦技术之后侦查破案的技术支撑和新的破案增长点,成为强化社会治安控制的有效手段,对提高侦查机关打击犯罪的效能具有重大意义。     

Scenario study of biometric systems at borders

This paper examines and compares the existing privacy instruments of VIS and US-VISIT systems in addressing the specific legal issues and challenging the privacy-invasive behaviour in the world of biometrics. A biometric scenario is presented to give a vision of a future society in 5 years from now when biometric technology is more widely used. The objective here is to open up the scope of considering the potential legal risks of the use of biometrics, based upon the present passport and visa application plans in the EU and USA.     

中欧标准必要专利比较研究与借鉴

标准必要专利建立的目的是为了推广技术,使得技术产品具有兼容性和统一性,避免资源浪费,提高生产效率。标准必要专利具有社会公共属性,其本身具有标准的公益性与专利权的私有性相统合的特性。对中国和欧洲地区标准必要专利的立法、司法实践进行系统梳理和比较,可以为我国标准必要专利的立法和实践提供借鉴建议。对于标准必要专利的认定,应当充分考虑技术的不可替代性,同时考量法律保护的地域性和国际规则;标准必要专利许可费率的确定要对不同收费标准予以具体分析,尽量对许可费进行事前市场考量,减少主观认知偏差和事后判断产生的问题;另外可以借鉴欧洲国家司法经验,详细规定专利权人如何遵守FRAND原则的规范指南;市场地位的判定不仅需要考虑市场占有率,还应当结合时间要素判断;对于滥用市场地位的认定应当考察是否“具有滥用之恶意”。     

对垃圾邮件侵犯网络隐私权的法律规制

垃圾邮件更大程度上侵害的是收件人的隐私权,或者说是安宁享受生活而不受不正当的侵扰的权利。很多国家从保障互联网使用者的隐私权为出发点制定了反垃圾邮件立法。我国法律对隐私权的保护没有规定,反垃圾邮件立法也相对滞后,使垃圾邮件有泛滥趋势。对滥发垃圾邮件的行为加以制止,对网络个人信息资料使用行为进行规范,同时也使网络个人资料的控制与利用制度进一步得到完善,是我国立法面临的一个重要问题。     

论政府信息公开排除范围的界定

在政府信息公开实践中,排除公开的范围应如何界定,成为整个信息公开法制的关键。为防止排除范围被行政主体滥用,国家秘密、商业秘密、个人隐私以及其它排除公开的范围应得到妥善界定。分析以上排除公开的范围,对国家秘密、商业秘密等概念的内涵进行适度收缩,同时要建立价值衡量的原则、明确排除范围的具体子类型、采用梯次化的概念内涵构造以及保证必要的监督空间等,为实现信息公开的价值而策略性地调整信息公开的排除范围。     

e-Youth before its judges - Legal protection of minors in cyberspace

The present paper¹ aims both at introducing the legal aspects of the protection of minors in cyberspace and analysing and criticizing certain main features embedded in this legal approach of young people protection. After a short introduction underlining the concept of child’s rights and the reason why this right has been particularly proclaimed in the context of the cyberspace, the first section describes the new technological features of the ICT environment and linked to this evolution the increasing risks the minors are confronted with. A typology of cyber abuses is proposed on the basis of these considerations. A list of EU or Council of Europe texts directly or indirectly related to the minors’ protection into the cyberspace is provided. The second section intends to analyse certain characteristics of the legal approach as regards the ways by which that protection is conceived and effectively ensured. Different principles and methods might be considered as keywords summarizing the legal approach and to a certain extent, fixing a partition of responsibilities taking fully into account the diversity of actors might be deduced from the different regulatory documents.The third section comes back to the different complementary means by which the Law is envisaging the minors’ protection. The obligation to create awareness about the potential risks minors might incur definitively is the first one. The omnipresent reference in all the legal texts to the role of self-regulatory interventions constitutes another pillar of the protection envisaged by the Law. After having described the multiple instruments developed in the context of this self-regulation (labels, codes of conduct, hotlines, ODR…) or even co-regulation, the paper examines the conditions set by the European legislators as regards these instruments. Technology might be considered as a fourth method for protecting children. Our concern will be to see how the Law is addressing new requirements as regards the technological solutions and their implementation. The present debates about the liability of the actors involved in applications or services targeted or not vis-à-vis the minors like SNS or VSP operators are evoked. As a final point the question of the increasing competences of LEA and the reinforcement of the criminal provisions in order to fight cyber abuses against minors will be debated. In conclusion, we will address final recommendations about the way by which it would be possible to reconcile effective minors’ protection and liberties into the cyberspace.     

The impact of CCTV on fundamental rights and crime prevention strategies: The case of the Catalan Control Commission of Video surveillance Devices

Many authors have written about issues related to privacy, legitimacy and efficiency in relation to CCTV systems in public space as a crime prevention strategy. Some have approached them separately; others have tried to come up with more comprehensive approaches. Few, however, have dealt with how such concerns have been put into practice by those who have to decide on the uptake of CCTV. This article considers some reflections on efficacy, legitimacy and privacy in relation to CCTV, as an introduction to the case of how the members of the Control Commission of Video surveillance Devices in Catalonia took these issues into consideration and interpreted the Law when deciding whether to approve a petition submitted by the City Council to install three cameras in Barcelona’s public space in 2003. It concludes by drawing some conclusions from the process, as a way to highlight the complexity of the policy process around surveillance in open, public spaces.     

La protección de los derechos fundamentales del deportista en la lucha contra el dopaje. Una visión desde el ordenamiento jurídico español

Doping is addressed in this paper from two different scopes: on one hand, the legal regulations for prevention and repression are studied; on the other hand, the clash between the anti-doping control mechanism and a fundamental right such as the athlete's privacy is noted. We start from the irrefutable fact that “awareness against doping” is practically universal. The enactment of this law was a milestone in the history of the fight against doping in the Spanish regulation. However, the problem arises when the anti-doping legislation worldwide and in Spain, which enables some healthcare professionals and other people involved, to carry out several anti-doping operations that may conflict with the athlete's fundamental right to privacy, all of this in a context of strong media and social impact. For this reason, it is pertinent to raise the issue if one of these operations, such as the duty of permanent localization, is sufficiently justified in terms of protecting the sportsperson's health.