Denmark Releases 32 Prisoners Convicted Because Of Flawed Mobile Phone Tracking Data

from the but-how-many-more-to-come? dept

A few weeks ago, Techdirt wrote about Denmark reviewing 10,000 court verdicts because of errors in mobile phone tracking data that was offered as evidence in those cases. At that time, it wasn't clear how many of the group were affected by the unreliable data. However, the Guardian reports that 32 people have already been freed. Given the large number of cases involved, it seems unlikely that many have been reviewed in such a short space of time. If that's the case, it is possible that quite a few more verdicts will be overturned, and more people released. Companies providing mobile phone services in Denmark are naturally keen to distance themselves from this mess. Jakob Willer, speaking on behalf of the country's telecoms industry association, said it was not their job to provide evidence:

"We should remember: data is created to help deliver telecom services, not to control citizens or for surveillance," Willer said. He conceded it could be valuable to police, but insisted its primary purpose was to facilitate communication between users.

That's an important point. If the authorities wish to use this kind of data they need to take into account that it was never designed to track people, and therefore has limitations as evidence. Fortunately, Denmark's embarrassing discovery that an unknown number of over 10,000 verdicts may be based on unreliable evidence has been something of a wake-up call for the country's lawyers. Karoline Normann, the head of the Danish law society's criminal law committee, told Agence-France Presse:

"This situation has changed our mindset about cellphone data. We are probably going to question it as we normally question a witness or other types of evidence, where we consider circumstances like who produced the evidence, and why and how."

It's troubling that it didn't occur to the legal profession to do that before. Just because information comes from high-tech sources doesn't mean it is infallible or that it can't be challenged.

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Filed Under: csli, denmark, evidence, location info, location tracking, privacy

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  1. identicon
    PDN, 14 Sep 2019 @ 12:19am

    Some context

    It's troubling that it didn't occur to the legal profession to do that before. Just because information comes from high-tech sources doesn't mean it is infallible or that it can't be challenged.

    While I agree, I feel two things need to be noted here:

    1. Location data generally isn't used as freestanding evidence since that would be an extremely shaky basis for a conviction. If your client has been convicted based on witness testimony or other evidence in conjunction with location data, it might not be immediately obvious to challenge the veracity of the data. Interestingly, a former figure on the biker gang ("rocker") scene is now asking for his case to be reevaluated because location data was used in conjunction with a witness statement to convict him, and he wouldn't have been convicted on testimony alone (the Court said the witness testimony alone would've been insufficient).
    2. I'm sure there were test cases in the mid-aughts when the logging directive and subsequent logging decree came into force. Those cases probably set a precedent, and while Danish law does not have formal evidence rules as such ("fri bevisbedømmelse", free evidence assessment), courts generally try to be consistent. Paired with the fact that Courts, like in the US, are not always particularly tech-savvy and, according to most defense attorneys, somewhat deferential to the claims of law enforcement, the probability that a challenge mounted before the scandal broke would succeed was probably low. If you know a challenge would be likely to fail, and would only saddle your client with more uncertainty and legal fees, you would probably recommend not trying.

    An entirely different matter is that this logging of location data (or at least the directive forming the basis for IT) has been ruled in violation of the EU Charter of Fundamental Rights by the ECJ, but the Danish government, three years on, refuses to change the relevant legislation. A lawsuit has been filed to force their hans, but it's purposefully being stalled by the government awaiting a new logging case at the ECJ.

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