Genvägen till övervakning - En kritisk granskning av hemliga tvångsmedel och genomsökning på distans i preventivt syfte ur ett rättssäkerhets- och integritetsperspektiv

Sammanfattning: Widespread gang-related crimes have become an increasingly important topic of political debate in Sweden and the escalated number of shootings in criminal environments have caused strong reactions. This has motivated the legislator to extend legislation in a way that enables more effective tools within the law enforcement. A suggestion that has been presented by an investigator for such a measure is that the area of application of preventive coercive measures should be expanded and thus, not only cover the crime-fighting of the Swedish Security Service, but also the Police Authority. The proposal means that the Police Authority, with the purpose of preventing serious crime, will be allowed to use secret coercive measures outside of a crime investigation, without a substantial suspicion of crime. The use of preventive secret coercive measures implies drastic measures by the government in the individual's personal integrity and the rule of law and is therefore something that requires careful consideration. The special investigator has moreover been tasked to examine whether the recently implemented coercive measure called “remote search” also should be available for preventive use. “Remote search” is considered by the legislator to be based on the regulations regarding search of the premises. This coercive tool can provide access to personal conversations and other documents found on, for example, a mobile phone's cloud services and other applications. For the coercive measure to be taken it is required that imprisonment is prescribed in the range of punishment, among other qualifications. However, “remote searches” can be considered to have similarities with the secret coercive measures and cause ambiguous regulation. This can therefore result in circumventions of legislation with higher requirements, in this case the legislation regarding secret coercive measures, by using shortcuts such as “remote searches”. The aim of this thesis is therefore to critically examine the extended possibilities for the use of preventive coercive measures. The thesis investigates the relationship between the need for effective law enforcement and the individual's statutory right to protection for personal integrity as well as the compatibility with the individual's legal security interests. The essay analyzes secret coercive measures, as well as “remote searches” for preventive purposes, and problematizes the similarities between the two types of coercive measures. Moreover, it highlights possible consequences of the intricacy of the findings. To achieve the purpose, the legislative proposals have been examined from a critical perspective, using a legal analytical method together with legal policy argumentation. The results show significant similarities between the secret coercive measures and the “remote search”. It is established in the analysis that “remote searches” might be used by the law enforcement authorities as a shortcut to obtain information for which such coercive measure would otherwise require a court order. It may as well entail abuse of power. The essay has also led up to the conclusion that preventive coercive measures, both “remote searches” and secret coercive measures, are very intrusive measures that entails restrictions on the individual's personal integrity and can lead to the rule of law being eroded, for example through deficiencies in foreseeability and arbitrary adjudication.