The New Zealand Security Intelligence Service Amendment Bill, recently returned from select committee, has recognised the site of a search for evidence may be virtual. Where the NZ SIS Act empowered SIS officers to search a “place”, this has been amended to read “place or facility”.
A facility is defined as “an electronic address, phone number, account, electronic identifier or similar identifier, or device that enables communications to take place or documents to be processed, stored, or accessed.” This includes, but is not limited to “a unique device identifier, a user account identifier, an Internet Protocol address [or] an email address”.
The Search and Surveillance Bill, also awaiting its second reading, has a similar definition, but it characterises a facility as a kind of “thing”. “Thing includes an intangible thing (for example, an email address or access information to an internet data storage facility),” the bill states.
Search warrants allow searches of “things” (for example, filing cabinets) as well as “places”.
Earlier in the passage of the Search and Surveillance Bill there was some doubt whether a location identified only by an IP address could be legally accessed purely electronically, without searchers entering a physical location.
This could only be done, officials said, when the facility was not physically accessible or when there was imminent danger that the information sought might be destroyed.
The SIS Amendment Bill is non-committal about whether a “facility” can be searched remotely, though it does say a warrant lets officers enter “any place where that facility is or is likely to be at any time”.