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.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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


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  • This comment has been flagged by the community. Click here to show it
    identicon
    B. Pinganfla Shing, 13 Sep 2019 @ 3:54pm

    So WHY wasn't it challenged at the time? Not ONE in 10,000?

    doesn't mean it is infallible or that it can't be challenged

    Surely it'd be a major point obvious to any defendant.

    The figure kind of makes the defendants look FLAWED TOO!

    You just VERY slightly re-write what I'd already read.

    You've added nothing! In fact, reduce!

    Is this the utmost level of your "journalism"?

    Don't you have ANY curiosity about details?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Sep 2019 @ 3:56pm

      Re: So WHY wasn't it challenged at the time? Not ONE in 10,000?

      Have you had a mental health exam lately?

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 13 Sep 2019 @ 3:57pm

      Don't you have ANY curiosity about details?

      I’m curious about the detail of how you can both support copyright and decry corporate censorship without your brain turning into pudding.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Sep 2019 @ 4:08pm

      Re: So WHY wasn't it challenged at the time? Not ONE in 10,000?

      You just VERY slightly re-write what I'd already read.
      You've added nothing! In fact, reduce!
      Is this the utmost level of your "journalism"?
      Don't you have ANY curiosity about details?

      If you don't like reading the articles here, why do you keep coming back?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Sep 2019 @ 6:03pm

    At least it wasn't the US.

    Here if something like that came about, you would still have to go through years of appeals while locked up, and might still remain convicted because even if all the evidence was wrong, the jury might still have been right.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 13 Sep 2019 @ 6:30pm

      Re: At least it wasn't the US.

      So far as I know, actual innocence isn't a reason to overturn a conviction, yet convictions get overturned. This is one of the places where our legal system absolutely baffles me.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 13 Sep 2019 @ 10:02pm

        actual innocence isn't a reason to overturn a conviction

        In America? Pretty much: “The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.” (Source)

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Sep 2019 @ 9:14am

        Re: Re: At least it wasn't the US.

        "So far as I know, actual innocence isn't a reason to overturn a conviction"
        Although it should be.

        "yet convictions get overturned"
        As a result of much effort and many hours in court.

        Justice should not be directly proportional to your net worth, and yet it is.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Sep 2019 @ 7:28am

        Re: Re: At least it wasn't the US.

        Troy Davis what?

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 13 Sep 2019 @ 10:36pm

    Get real

    I think the big issue is, Denmark isn't willing to be the first country to admit their mobile phone tracking data is 100% accurate. I mean, no government would use questionable data.

    reply to this | link to this | view in chronology ]

  • 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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2019 @ 3:28am

    "...wake-up call for the country's lawyers..."

    Wake up call? More like lunch time call.

    They are going to make big eurobucks from this.

    reply to this | link to this | view in chronology ]


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