Statliga trojaner i kampen mot grov brottslighet - En studie av lagen om hemlig dataavläsning

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The Secret Data Interception Act came into force on 1 April 2020 despite the fact that the adoption of the law had been questioned by several consulta-tion bodies. Secret data interception is a clandestine coercive measure through which the law enforcement agencies access a communication device and obtain the information found therein. The utilization of clandestine co-ercive measures must be compatible with the Swedish Instrument of Gov-ernment as well as the European Convention on Human Rights. The purpose of this paper is – on the basis of the dichotomy in criminal pro-cedure of effective law enforcement versus legal security – to analyze whether the Secret Data Interception Act meets the substantive criteria for a good legislation, namely the legislation’s necessity, efficiency and propor-tionality. A legislation that is not good risks eroding the legitimacy of the state. In order to determine whether the Act is a good legislation I have pro-vided answer to the following questions: (1) Is there an obvious need for secret data interception?; (2) Is the Act efficient?; (3) Are there sufficient safe guards? and (4) Is the Act well balanced and proportionate? In order to answer these questions, I have examined the legislator’s reason-ing for adopting the Act and the consultation bodies’ comments on the same. Thus, the overall method used is the legal dogmatic method. The leg-islator has stated that there is an obvious need for the measure and that it is expected to be efficient. In addition, the provided safeguards are sufficient. The consultation bodies have mainly maintained, on the contrary, that the measure entails an extensive infringement of the right to respect for private life. Furthermore, they have argued that the safeguards provided are not sufficient. In summary I have concluded – based on existing crime statistics and data provided by the law enforcement agencies – that there is an obvious need for secret data interception. Although the measure will probably be used in few cases, it will have a significant qualitative effect. However, it is also clear that secret data interception will involve a greater risk for invasion of the right to privacy. Nevertheless, the safeguards provided are sufficient to balance these risks. The privacy of the individual will thereby be preserved to a great extent. Therefore, the legislation is well balanced and proportion-ate. The interest in pursuing effective law enforcement is in this context more significant than the increased risk of invasion of the right to privacy. With that said, it does not mean that the legislation is not without deficien-cies. Nevertheless, these deficiencies will not make the Act poor. On these grounds, my conclusion is that the Secret Data Interception Act is a good legislation.

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