In the near future, you or your IT staff may be required to provide information or give assistance to the police in the form of providing access to data, computers or other electronic hardware and it seems highly unlikely that you will be compensated for your efforts. You may also be required to assist the police by providing passwords or decrypting electronic data if the recommendations of the Law Commission in its recently released paper Electronic Technology and Police Investigations – Some Issues are implemented.
The Law Commission's paper is based on the advice it was asked to provide to the Ministry of Justice earlier this year on various issues relating to police search powers, including the power of the police to obtain assistance orders for the search of computer systems and requiring reasonable assistance in locating and downloading information from the person or company concerned.
Questions the Law Commission asked itself were:
whether the law should impose an obligation on third parties to assist; and whether the party required to assist should be compensated for its services.Current PositionAt present there is no legal duty (in the absence of an express statutory requirement) to assist the police in a search, although it is illegal to hinder the police.
The Law Commission concludes that this rule is insufficient to cope fairly with circumstances in which legitimate criminal investigation processes encounter contemporary technology. In particular, the Law Commission noted that police access to computer-stored data may be difficult or time consuming (and consequently unnecessarily expensive) or impossible unless the searcher is provided with various types of assistance such as passwords and information enabling decryption.
Obligation to AssistOn the question of whether or not there should be an obligation to assist the police, the Law Commission's recommendations are:
Legislation be amended to provide for an order imposing an obligation on any person to provide any information or assistance that is reasonable and necessary to allow the police to access data held in, or accessible from, a computer (defined in the warrant), copy the data to a data storage device or convert the data into documentary form. That there be an obligation on any person to furnish the key to electronic data that the police are entitled to search. A key in relation to any electronic data could mean any key, code, password, algorithm or other data the use of which (with or without other keys) allows access to the electronic data, or facilitates the putting of the data into an intelligible form.These recommendations would generally make all law relating to search warrants consistent with the Telecommunications (Residual Powers) Act 1987 which imposes a positive obligation on network operators (such as Telecom, Vodafone and TelstraClear) to assist in the operation of a call data warrant.
The Law Commission report makes it clear that none of these provisions are intended to interfere with the rules protecting a person suspected of an offence from self incrimination. The focus of the report is with the rights and obligations of third parties and none of the recommendations apply in the case of a person suspected of having committed the relevant offence.
The Cost of Furnishing AssistanceOn the question of who pays for the assistance given to the police, the Law Commission recommends adopting a provision which would entitle the third party providing the assistance to seek an order for recompense from the District Court, if the provision of the information has imposed "extraordinary financial hardship" on that third party. The Law Commission suggests that this provision should, in practice, limit the application for recompense to genuine cases of relief of hardship for long and difficult searches.
This has been a particularly hot issue for communications providers, some of whom have charged the police considerable amounts for the cost of providing assistance. The Law Commission paper quotes an article which suggests that some police enquiries have not been taken further because of a lack of cash. However, the recommendations of the Law Commission's report will extend the scope of people/companies who may become obliged to assist the police. "Extraordinary financial hardship" seems to be a fairly high threshold before a third party could apply for compensation for assistance. We suspect that determining what is reasonable assistance and who bears the cost of that assistance will be the subject of much more debate.
The Law Commission also recommends that the obligation to assist is not suspended pending the determination of any issue of recompense.
The paper is available from the Law Commission's website www.lawcom.govt.nz.
This is a general summary only and should not be taken as a substitute for specific advice.
Contacts
Karen Ngan, Partner, karen.ngan@simpsongrierson.com
Mike Sage, Partner, michael.sage@simpsongrierson.com
x-tech group Simpson Grierson Web site:
x-tech group Simpson Grierson