In some countries the mere collection of data is not considered enough to trigger Art. 6 ECHR safeguards. Sunde reports that the Norwegian Supreme court held that the mere copying of the data is not search and seizure, and only when the police are able to pick relevant files as evidence do suspect rights apply (Årnes, 2018, p.55). In the context of data protection, the Court of Justice in EU stated, to the contrary, that the mere access, retention, and communication of personal data to a third party, such as a public authority, constitutes an interference with the right to a private life, irrespective of the subsequent use of the information.10 In the same vein, the ECtHR seems to be in favour of the view that the procedural guarantees of Art. 6 ECHR are invoked in the early stages of an investigation, when the investigative measures are directed to concrete suspects, which arguably includes targeted data collection for evidence.
This interpretation means, that in the Encrochat case Art. 6 ECHR safeguards are triggered when the technical implant is distributed to suspects phones and the data is accessed by law enforcement, irrespective of its subsequent use.
For legal purposes, in most documented sources the Encrochat operation is classified as phone interception, however its technical characteristics relate it more closely to computer surveillance.
As will be examined further, the authorities acquired Encro-phone data by the use of a technical implant which captures data in a volatile memory. In technical terms, volatile memory is a combination of data that is part of the transmission, and additional temporary processed data that is not intended for storage or transmission such as passwords and encryption keys. 🔐
Both types of data can be obtained only with computer surveillance technology because phone interception does not capture data that is not yet stored, in between transmission, or that is never intended to be stored or transmitted.
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