EU Criminal Law and Electronic Surveillance: The Pegasus System and Legal Challenges It Poses

Abstract

The introduction of modern forms of communication, such as encrypted messengers or VoIP telephony, has forced law enforcement agencies to use new technologies to carry out surveillance of people facing criminal proceedings. Rather than relying on the interception of communications during transmission, modern surveillance systems are often based on breaking or bypassing the security features of a user’s mobile device – making it possible to conduct various forms of surveillance that include audio and video recording. One example of such a system is Pegasus – a tool that was initially used to pursue national security objectives but is now increasingly applied in criminal surveillance. The introduction of technical innovations in criminal surveillance must include an examination of their compatibility with legal constraints laid down to protect the individual against the risk of arbitrariness and abuse of power. The effectiveness of surveillance should never be the sole determinant for tasks undertaken by public authorities. The aim of this article is to demonstrate that the implementation of modern surveillance measures such as Pegasus must also include a review of existing legal regulations to ensure that the use of these products’ extended capabilities is under proper control and complies with the rule of law.