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Trial lecture - time and place
Adjudication committee
- Professor Tobias Mahler, University of Oslo (leader and 1 opponent)
- Lektor Lene Wacher Lentz, Aalborg University (2 opponent)
- Associate Professor Jorun Snekkestad, University of Tromsø
Chair of defence
Dean Ragnhild Hennum
Supervisor
Professor Maria Astrup Hjort
Summary
This thesis explores the current meaning of "technological neutrality" in criminal process and proposes what it should mean in the future. Inspired by philosopher Rudolf Carnap, a new definition is developed within the layered legal system, particularly drawing on the work of Karlo Tuori. The aim is to better systematize rules within the part of the criminal process that governs the police's handling of evidence ("the digital investigation process").
The thesis concludes with a proposal for a new chapter in the Criminal Procedure Act, showcasing new technologically neutral rules in a legal context. These new rules for handling digital evidence make it easier to understand what the police can do in relation to citizens.
Meanings of Technological Neutrality
To investigate the meaning of "technological neutrality," the thesis examines where different forms and statements of technological neutrality can be found in the legal system. Within the part of the legal system that regulates the digital investigation process, three variants of technological neutrality are identified:
1. Legal components that equate technology and non-technology
2. Legal components that equate different technologies
3. Legal components that equate effects
Legal components are part of rules and can typically be conditions within a rule. The thesis systematizes legal components in the regulation of the digital investigation process under these variants.
An example of a component systematized as variant no. 1 is the meaning of "things," cf. Criminal Procedure Act Section 203. This component equates technological and non-technological objects. Both a stone (non-technological object) and a domain name on the internet (technological object) fall under "things," cf. Criminal Procedure Act Section 203.
The police's ability to require someone to confirm their identity through biometric authentication applies to the search of a "data system," cf. Section 199 a. The meaning of "data system" is an example of a component under variant no. 2 that equates different data technologies.
Criminal Procedure Act Section 4 b, which requires signatures to have "notoriety," is an example of a component that falls under the last variant of technological neutrality by regulating the effect or result of the method used to sign. The result requirement is that it must be possible to verify that the signature is genuine.
A New Concept of Technological Neutrality
After establishing how technological neutrality is currently understood in the legal culture, a new concept of technological neutrality is constructed. This concept is based on criteria derived from Carnap's requirements for explication. This new understanding of "technological neutrality" systematizes components in the regulation of digital investigation in a new way.
Following this construction, "technological neutrality" means legal components that equate digital technologies and components that regulate their effects. Examples of such components are provided, including both existing components under current law and new components. One such new component is an additional requirement for proportionality in the police's digital interventions.
New Chapter in the Criminal Procedure Act
To demonstrate how the new technologically neutral components will function in a legal context, a proposal for a new chapter in the Criminal Procedure Act is presented. This chapter is called "the digital investigation chapter." Central to the chapter is the new technologically neutral proportionality assessment mentioned above.
In this proportionality assessment, greater consideration is given to the actual infringement of integrity that occurs during digital investigative steps than is currently done. A new technologically neutral proportionality assessment could, for instance, consider whether the intervention involves intimate data collected from body sensors or traffic data indicating the location of the digital device at a specific time.