IT staff could be compelled to help police to retrieve evidence of a possible crime, without recompense, if recommendations by the Law Commission are implemented.
Law enforcement officers could require a company’s IT staff, a private computer user’s friends or expert consultants to assist them in finding evidence, by releasing passwords or undeleting or decrypting data, the commission has reported in a recent paper.
There is no certainty that any of these parties would be paid for their efforts. It would be in their interest to cooperate, the commission hints, as otherwise the investigating officers could conduct a long and complex search, disrupting a company’s or individual’s routine business.
These points are juxtaposed, in the commission’s report, with the requirement to be imposed on telecommunications companies and internet service providers to make their networks amenable to interception, though the Justice Ministry’s policy manager on crime issues, Phil Divett, says the two issues are “really quite separate” and the commission has, perhaps, linked them too closely.
Outside the question of interceptability, communications providers are already required to assist in the deployment of interception or phone listening devices, under the Telecommunications (Residual Powers) Act 1987. On this side only the interceptability requirement is new, he says. An Interception Capability Bill is being drafted for later presentation to parliament, but cabinet has not yet reached a decision on the recommendations to oblige other people to help, Divett says.
The commission was working on both questions late last year, in the context of a general paper on “search and seizure” powers when the Justice Ministry asked it to give high priority to the IT aspects, because of legislative deadlines. A paper on these emerged in February, but the general search and seizure paper has only just been released.
At present, while it is illegal to hinder an officer in the course of such an investigation, one is not compelled to offer any positive help. With the difficulty of retrieving information that may lie behind password protection or be encrypted, deleted — its index entries removed while the data itself is still in storage — or partially destroyed to escape detection, the police have suggested that compulsion is in order, and the Law Commission broadly agrees.
The commission quotes a report from the European Community on an equivalent provision: “This power is not only of benefit to the investigating authorities. Without such cooperation, investigative authorities could remain on the searched premises and prevent access to the computer system for long periods of time while undertaking the search. This could be an economic burden on legitimate businesses.”
Telecommunications companies have already been requested to make their networks interceptable, law on this is currently being drafted, and to compel cooperation by them and not other third parties appears inconsistent, the Law Commission says.
“In New Zealand, the issue [of recompense for assisting investigations] has been a live one,” says the commission. “Press reports suggest that the communications providers [Telstra]Saturn and Clear did not, but Telecom for some four years and Vodafone for a lesser period have charged for assistance and that the cost to police is between $500,000 and $750,000 per year.”
The commission suggests that the assisting party be allowed to apply for recompense in the district court. Reimbursement of communications organisations for assisting interception has already been approved by Cabinet, Divett says.
The suggested assistance requirement applies only to third parties, the commission emphasises, not to the alleged offender or immediate possessor of possible evidence. He or she is protected by law from self-incrimination.