The Netherlands Supreme Court rendered its opinion on this issue in three cases in April 2017. One of these cases is the focus of this blog post.

In various situations, such as when a suspect is being held, investigators are permitted to seize objects that might help bring the truth to light. They are also permitted to search the objects they seize. The opinion in this case involved the search of a smartphone, a device that can be used nowadays to get a picture of virtually someone’s entire life.

In the case at hand, investigators had seized the suspect’s smartphone. The police then used software to search the smartphone and read the accompanying SIM card. The file then contained the relevant contacts, call history, and messages from the smartphone. On appeal, the suspect’s attorney contended that this violated the suspect’s right to privacy; the appellate court disagreed.

The Supreme Court, in turn, reversed the appellate court’s decision. The Supreme Court held that the seizure and search of a smartphone may be based on the general authority of investigators to seize objects that might help bring the truth to light. However, these searches are subject to the condition that the infringement on the suspect’s personal life must remain ‘limited’. The Supreme Court provided several points of reference for its opinion. For example, if the search only regards a small amount of data stored on the smartphone, this infringement may be limited. At the other end of the spectrum is a search that results in a virtually complete picture of the smartphone user’s personal life (or of certain aspects thereof). The appellate court should therefore have determined whether the infringement on the relevant suspect’s personal life had remained limited.

In its decision, the Supreme Court held that, since statutory law is still insufficiently specific on this point, the public prosecutor and the delegated judge could still search a smartphone, even if the resulting infringement on the suspect’s personal life is less than limited. An investigation by a delegated judge should be considered primarily in situations in which it is foreseeable that the infringement on the suspect’s personal life will be extreme, according to the Supreme Court.

This paints a tidy picture in theory, but we wonder what it will be like in practice to arrange for a delegated judge to search a smartphone, since it is precisely in those cases in which a delegated judge will have to be involved – for example, in extremely thorough searches that involve examining countless data on the relevant smartphone – that a delegated judge would not conduct those searches himself/herself. In practice, we can expect the police to continue to search smartphones for the time being – perhaps after having obtained permission from the delegated judge. Only time will tell whether the delegated judge test referred to above will better protect suspects’ privacy.