Knowing Without Entering: How Remote Police Surveillance Affects Privacy of the Home

Abstract

The fundamental right to inviolability of the home has traditionally been interpreted as protecting people from physical intrusions into their dwellings. However, the growing use of technologies for non-physical intrusions into the home, enabling surveillance from the outside by law enforcement, makes home life more transparent without investigating officers having to physically enter. In this paper, we survey forms of surveillance of the home, describe how German, Polish, and Dutch law regulate these surveillance measures, and suggest improvements to the legal frameworks so that the fundamental right to protection of home life remains safeguarded. We group remote surveillance of the home into five categories: Waste monitoring, monitoring of emanations, audio-visual surveillance, access to data in the home, and out-of-home access to data about home life. Our analysis shows that visual surveillance, acoustic surveillance, and access to home-related data are relatively well-regulated, usually with a sufficiently clear legal basis and considerable safeguards. In contrast, monitoring of garbage, sewage, and emanations from the home (heat, smell, electromagnetic waves) is less clearly regulated. Although these surveillance measures seem less serious interferences with inviolability of the home, legislatures should clarify the legal basis for these methods and the conditions applying to them.