Seizure and confiscation of data storage devices: a look at the new draft law!

Fundamental changes to the seizure and confiscation of cell phones and laptops. A controversial draft law has been introduced in the National Council which is intended to significantly change the previous framework conditions for the seizure and confiscation of data storage devices such as cell phones and laptops, including the data on them.

Here is a brief summary of the most important changes that could become a reality soon:

1. Clear distinction between seizure and confiscation: In the future, it will no longer be possible to seize data for the purpose of evaluating it. If this purpose is to be achieved, the stricter provisions for the confiscation of data storage devices and data will apply.
2. Judicial authorization required: Judicial authorization is already required to establish the power of disposition over a data storage device and the data stored on it. Confiscation is to be redefined as a “court decision to justify a seizure […] for the purpose of evaluating the data.” This ensures that the public prosecutor’s office only has to order the criminal investigation department to establish the power of disposition on the basis of a judicial authorization.
3. Confiscation for evidentiary purposes only: The new regulations only permit confiscation if it is for evidentiary purposes and for the purpose of evaluating the data. This supersedes the general provisions on seizure and confiscation.
4. Increased obligation to give reasons: Any such order by the public prosecutor’s office, as well as its authorization by the court, must comply with an increased obligation to provide justification. The data categories and data content to be confiscated must be clearly specified, and the time period during which the confiscation may be carried out must be precisely defined. This gives those affected the opportunity to hand over the requested data themselves and thus avoid coercive measures.
5. Access to the results of data processing: Individuals whose data storage devices have been confiscated will have the right to access the results of the data analysis to the same extent as the investigating authorities. This also applies to data that was originally deleted and restored by the investigating authorities, thus providing clarity about the extent of the analysis carried out by the authorities.
6. Enhanced legal protection: Under certain conditions, data processing can be carried out as part of a judicial evidence procedure. Additionally, independent supervision by the legal protection officer (“Rechtsschutzbeauftragter”) will ensure that law enforcement authorities act within the bounds of judicial authorizations and legal regulations.

Overall, this draft law contains welcome and long-overdue changes to the Austrian Code of Criminal Procedure. The rights of defense are strengthened and a significant contribution is made to establishing equality of arms in preliminary proceedings. Since the Constitutional Court has repealed the previous provisions with effect from December 31st, 2024 – due to a violation of the fundamental right to data protection (section 1 DSG) and the right to respect for private and family life (Article 8 ECHR) – the National Council originally wanted to pass the law before the summer recess. However, following heavy criticism from public prosecutors and courts, the debate has now been postponed until September. It therefore remains to be seen how the National Council will ultimately implement these important innovations.

Our expert Laura Viechtbauer and our industry experts in the field of criminal defense and white-collar crime law are happy to answer any further questions you may have on this topic.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.

 

1. July 2024

 

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