The convictions of online child pornographers could be challenged if the Department of Internal Affairs has faxed warrants through to internet service providers (ISPs) rather than presenting them in person, according to an Auckland lawyer.
“The DIA must send a police officer with a warrant to any ISP it wants information from — it cannot fax the warrant through and expect it to have any weight,” says Craig Horrocks, partner at Auckland law firm Clendon Feeney.
Horrocks says he has argued this point with the DIA on a number of occasions yet the department continually “tries it on” with ISPs and many ISPs don’t realise that a faxed warrant isn’t legal. Any ISP that has revealed private information to the DIA because of an illegal warrant could also face legal action.
"If the information is obtained prior to the warrant being served, the information is illegally obtained and can be thrown out of court. It just amazes me that this is still taking place," says Horrocks, who was speaking at a Crimes Amendment Bill workshop run by the Information Security Forum in Auckland last week.
One attendee reported the DIA had faxed a warrant to an unnamed ISP which had then gathered header information on the person named in the warrant without being aware of the possible illegality of the warrant itself.
“The warrant is generally served in person. I can’t confirm this but there may be times when it is faxed through,” says DIA spokeswoman Pamela Fleming. She says the DIA will often contact an ISP during the course of an investigation to supply details of the person under investigation.
“The ISPs co-operate by identifying when the user was online and that sort of thing, and to do that they do need to serve a warrant.”
Manawatu Internet Services director Allan Brown says the police have tried to access information on MIS’s servers without a warrant in the past.
“I told them to go and get one and they said they would but they never came back.”