OPEN SOURCING EVIDENCE FROM THE INTERNET – THE PROTECTION OF PRIVACY IN CIVILIAN CRIMINAL INVESTIGATIONS USING OSINT (OPEN-SOURCE INTELLIGENCE)

Abstract

This paper explores the relationship between open-source intelligence and privacy in the context of civilian criminal investigations. The existing legal mechanisms that could apply to open-source intelligence (OSINT) and civilian criminal investigations are discussed but a lack of suitable regulations is identified. Moreover, the legal, political and ethical implications of OSINT on the traditional privacy framework are discussed with the use of a case study. A paradoxical situation is identified, in which publicly available information is thought to be free from privacy concerns based on the fact that it is publicly available, although the information can be (sensitive) personal information and therefore inherently private. A theoretical solution is proposed to fill this lacuna in the law, consisting of a combination of Nissenbaum's theory on privacy as contextual integrity and Koops' theory on a new privacy proxy of a digital home right. This could provide legal privacy protection in civilian criminal investigations using OSINT, creating a just balance between investigation interests and privacy concerns. This research can serve as a guideline when drafting fiture privacy regulations regarding open-source intelligence and civilian criminal investigations.