ISPs have to tread carefully when responding to faxed search warrants from police or Internal Affairs, says an Auckland lawyer.
Auckland-based Russell McVeagh partner Mike Cronin says there are specific rules about the warrants process to which police must adhere.
“Execution is discussed but isn’t defined. It is suggested that whoever executes the search warrant must have it in their possession and has to produce it if required.”
This last point, he says, may lead Internal Affairs to believe faxing warrants to ISPs is acceptable practice.
“If you’re only requesting information and they voluntarily give it up, you don’t need a warrant. It’s only when you’re giving up someone else’s information.”
If ISPs are aware of the warrant, says Cronin, they can go ahead and give out the information. However ISPs are under some obligation to keep user information confidential and if an ISP gave out that information without a warrant they could open themselves up to legal action at a later date.
“The warrant serves to override that confidentiality, so if [the ISP] didn’t bother to ask for one and handed it over anyway they would be negligent.”
The issue is handled for the Department of Internal Affairs by its Censorship Compliance Unit and its director, Stephen O'Brien, defends the practice, saying it is better for ISPs that the warrant is faxed to them prior to the police arriving on their doorstep.
"We want to work in with the ISPs and we don't expect them to drop everything to find the information we're looking for." By faxing the warrant through, DIA can ensure the ISP has plenty of time to retrieve the information needed.
"Typically we would talk to the ISP before issuing the warrant to ensure they're aware of it." O'Brien says the department tries to deal with the same person at each ISP each time so they can build up an understanding of the process.
O'Brien says if the ISP is uncomfortable accepting the warrant by fax the depatrment would arrange for it to be served in person, probably by the police, as the department has only a handful of staff up and down the country.
Auckland-based lawyer Craig Horrocks has encountered the problem of faxed warrants before (ISPs 'served with illegal warrants'), and says the Crown Law Office opinion that Internal Affairs relies on is somewhat dubious. The case used as precedent, the Crown v Sanders, refers to a warrant issued to a detective to search records held in another city. The detective contacted the holder of the information who posted the documents to the police without the warrant actually being executed.
“It is important to note that the Crown conceded in Sanders that the warrants were ‘slipshod’” says Horrocks, who finds it amazing that such a precedent is now being used to validate the faxing of warrants. He says there are “good, sensible reasons” for the basic requirements of the issuing system.
“Execution of a warrant is an intrusion on our private affairs. It should not be done in some slipshod manner that ... removes the statutory protection from the party that is complying.”
Horrocks is concerned that an ISP may be caught out if it supplies the wrong information to an officer who hasn’t physically presented the warrant.
“Under the Sanders rule the warrant is executed by seizure when the documents are received so the ISP cannot be acting in accordance with the warrant if it voluntarily provides the documents.”
The DIA typically serves less then 100 warrants on ISPs in a year.