New law codifies computer search powers

Threat of remote searches removed - with some exceptions

Computers will remain secure from covert online search under planned new search and surveillance legislation — with two possible exceptions.

Those exceptions are where a computer cannot be located on any physical premises, like when the storage is in some form of “cloud”, or in cases of urgency where evidence of a serious offence is at imminent risk of being destroyed, says a spokesperson for Justice Minister Simon Power, who is sponsoring the Search and Surveillance Bill.

“In [cases of the latter kind] police are given the power to search without a warrant and this can include remote access,” she says.

This appears to go against a Law Commission recommendation.

The possibility of remote search was discussed in the Law Commission’s 2007 report on search and surveillance powers. It rejected the idea of remote search of a suspect computer from off-site, but allowed the remote search of other computers accessible from premises being physically searched. That is reflected in the Bill.

The purpose of the latter provision is to access evidence that the suspect may have secreted on remote sites.

Internet experts, including at least one lawyer, have suggested on online forums and Twitter that the Bill’s provisions might be interpreted to allow search warrants to be executed remotely, without physical entry to the premises and without the computer’s owner being aware a search is being conducted.

The Minister’s representative says: “The Search and Surveillance Bill only allows remote computer searches where it is not possible to access a physical location to search the computer (for example, an email account at various internet cafes), or when not all the data is located in the particular computer at the physical location being searched (for example, multiple data storage sites).

“Although it is possible to access data remotely without physically entering the search premises, this is not available under the Bill because of the public interest in maintaining the integrity of computer data,” she says.

However, she adds: “Where there are grounds for Police to urgently search a premises without a warrant, this can include remotely accessing data on the computers at the premises.”

Section 15 of the Bill, which provides for such urgent access to prevent evidence destruction, limits its ambit to offences punishable by at least 14 years’ jail.

The Law Commission’s report considers this as the last of five possible “scenarios” justifying remote access and says since it rejects ordinary remote access to the suspect’s computer from outside the premises, and allows for access from the premises being searched to a remote site, “we consider that no further provision for warrantless remote searches is desirable”.

The Bill is currently in its first-reading.

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