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International review of criminal policy - Nos. 43 and 44/The coercive powers of prosecuting authorities

148. In accordance with the practical requirements of investigations in the field of information technology and based on the various coercive powers existing in most legal systems, an analysis of the coercive powers of prosecuting authorities has to differentiate among search and seizure in automated information systems; duties of active cooperation; and wire-tapping of telecommunication systems and "eavesdropping" of computers.

1. Search and seizure in automated information systems
Problems of traditional law

149. Collecting data stored or processed in computer systems generally first requires entry to and search of the premises in which the computer system is installed (powers of search and entry of premises); it is then necessary that the data can be seized or captured (powers of seizure and retention).

150. With respect to the investigation of computer data permanently stored on a corporeal data carrier, the general limitation of the powers of search and seizure to the search and seizure of (corporeal) objects relevant to the proceedings or to finding the truth does not, in most countries, pose serious problems, since the right to seize and to inspect the corporeal data carrier or, in case of internal memories, the central processing unit also includes the right to inspect the data. In other words, there is no difference whether the data are fixed with ink on paper or by magnetic impulses in electronic data carriers. This conclusion is even more evident for provisions in which the powers of search and/or the powers of seizure are directed towards "anything" that would be admissible as evidence at a trial. The same evaluation also applies mutatis mutandis for powers of confiscation.

151. Application of the traditional powers of search and seizure might, however, cause problems in cases where data are not permanently stored in a corporeal data carrier. In these instances, it is questionable whether pure data or information can be regarded as an object in the sense of criminal procedural law. The same holds true if the legal principle of minimum coercion or of proportionality makes it unlawful to seize comprehensive data carriers, or complete computer installations, in order to gather only a small amount of data. Similarly, search and seizure of comprehensive data carriers could cause serious prejudice to business activities or infringe the privacy rights of third parties. Uncertainties may also arise in cases in which data carriers (such as core-storage, fixed-disk devices or chips) cannot be taken away to be evaluated on a police computer but must be analysed using the computer system in question. In all these cases one might consider applying the powers of search not only to detect a computer installation and data but also to fix (especially to print) the relevant data on a separate data carrier and then seize this new object, which might be a diskette or a printout.

152. However, such a construction depends on the question of whether and to what degree the powers of search and seizure include the power to use technical equipment and (copyrightable) programs belonging to a witness or to an accused, in order to search and/or fix computer data. Only a few laws state that in the execution of search and seizure all necessary measures may be taken. Consequently, in many legal systems an effective search for pure data or information is not provided for by the law.

153. Special problems also arise with respect to search and seizure in computer networks. Here, it is questionable whether and to what extent the right to search and seize a specific computer installation includes the right to search databases that are accessible by this installation but that are situated in other premises. This question is of great practical importance since perpetrators increasingly store their data in computer systems located elsewhere in order to hinder prosecution. Specific problems of public international law arise with respect to search and seizure of foreign databases via international telecommunication systems. In these international systems, the direct penetration by prosecuting authorities of foreign data banks generally constitutes an infringement of the sovereignty of the State of storage (and often in a punishable offence); however, there might be some specific exceptions that could be developed internationally in which direct access to foreign data banks via telecommunication networks could be permissible and the lengthy procedure of mutual assistance avoided.

154. Problems of interpretation also arise with respect to extra safeguards for specific information. This is not only an issue with respect to the materials of professional legal advisers, doctors, journalists and other people who may , in some legal systems, be exempt from giving evidence. One of the latest disputes in this area is the question of how far the privileges of the press should also be applicable to electronic bulletin boards. Even more intricate questions arise with the application of safeguards and specific provisions to papers , documents and letters, especially in the fields of electronic mail and telecommunication systems. Owing to the rationale of these privileges , they should generally apply equally to paper-based and computer-stored material , especially as between traditional mail and electronic mail.

Law reform

155. In some countries attempts have been made to resolve these uncertainties and loopholes in the field of search and seizure of data and information by legislative amendments. In the United Kingdom, the general power of seizure provided by section 19 of the Police and Criminal Evidence Act of 1984 is directed to "anything which is on the premises" and, under certain conditions, provides the power "to require any information which is contained in a computer" (for the latter duty of active cooperation, see paragraphs 157-162). In Canada, section 14 of the Competition Act and similar provisions in the Environmental Protection Act and the Fisheries Act permit searching for "any data contained in or available to the computer system". Furthermore, section 3(1) of the legislation proposed by the Law Reform Commission of Canada with respect to search and seizure defines objects of seizure as "things, funds, and information" which are reasonably believed to be takings of an offence, evidence of an offence or contraband.

156. Such sui generis provisions for gathering data not only provide legal certainty and a basis for efficient investigations in an EDP environment but, with respect to legal policy, can also be based on the argument that copying data is often a less severe inhibition than the seizure of data carriers. Moreover, sui generis provisions have the advantage of being able to solve specific questions of search and seizure of data, such as compensation of costs for the use of EDP systems, subsequent erasure of copied data that are no longer required for the prosecution, or search and seizure in telecommunication networks.

2. Duties of active cooperation
The practical problems

157. The aforementioned powers of entry, search and seizure, and even a sui generis power of gathering data, do not, in many cases, guarantee a successful investigation, since the traditional authorities often lack the knowledge of computer hardware, operating systems and standard software necessary to access modern data-processing systems. The very complexity of modern information technology creates many problems regarding access to computer systems, which can be solved, but only partially, by better police training. This is mainly the case with respect to specific security software and encryption designed to prevent unauthorized access to information. Serious problems are also caused by the multitude of data stored in computer systems and by the limited time and financial resources available to prosecuting authorities for checking these data. Consequently, the duties of citizens to cooperate with prosecuting agencies become of much greater importance in computerized environments than in non-technical, "visible" areas.

158. The traditional legal systems of most countries include two instruments that might be used to achieve the cooperation necessary for gathering evidence in a computerized environment: the duty to surrender seizable objects of evidence and the duty to testify. In some countries, additional and more extensive provisions or reform proposals have been enacted or suggested.

Duties to surrender seizable objects

159. The duty to surrender seizable objects is often coupled with the powers of search an seizure. In many countries the holder of a seizable object is obliged to deliver it on request to the (judicial) authorities; however, some legal systems do not provide such an obligation, and in some countries the respective court orders are not enforceable. The duty to surrender seizable objects can help the investigating authorities, especially in selecting specific data carriers from among the many tapes and diskettes that are usually stored in a computer centre. However, the obligation to surrender seizable objects does not generally include the duty to print or deliver specific information stored on a data carrier. Consequently, in many countries the powers of seizure and the duties to surrender seizable objects can only support voluntary printing of specific information. Practice with respect to search and seizure in the field of banking shows that banks often voluntarily print out specific data in order to prevent the seizure of large volumes of data carriers. However, the threat of a comprehensive seizure and serious prejudice to business activities cannot be regarded as a satisfactory legal solution for the relevant problems.

Duties to testify

160. In many cases an important duty of active cooperation can be based on the duties to testify, i.e. the duty of (unsuspected) witnesses to "testify", to "tell the truth", to "answer questions" etc. This is especially the case in countries in which the traditional duties to testify contain the more extensive obligation that the witness refresh his or her knowledge of the case, e.g. by examining account books, letters, documents and objects that are available to the said witness without special inconvenience, and to make notes and bring them along to the court. However, in most legal systems the traditional duties to testify cannot be extended to efficient duties of cooperation , especially not to the printing out of specific information. The main reason for this conclusion is the fact that the duty to testify, and consequently the duty of witnesses to refresh their knowledge, refers only to knowledge they already had in mind and not to new information. A different conclusion would also confuse the roles of witnesses and experts. Furthermore, in many countries the witness must testify before a judge, and in some countries before the public prosecutor, but not before police conducting the investigation; in some legal systems, the duties to testify exist only at a later stage of the proceedings and not during the police investigation. Moreover, the requirement that a (written or oral) court summons be given to the witness in due time prior to the proceedings could make such proceedings ineffective.

Law reform

161. To make investigations in computerized environments more efficient, some countries have recently enacted or suggested new compulsory duties to produce specific information. According to the police and Criminal Evidence Act 1984 1of the United Kingdom, the constable "may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible". In Canada, the Mutual Legal Assistance Act provides for an evidence gathering order addressed to a person "to make a copy of a record or to make a record from data and to bring the copy or record with him". However, with respect to data accessible via international telecommunication networks, these provisions leave open the question whether and to what degree a State, in accordance with international public law, has the right to oblige its citizens to gather evidence in foreign countries. Furthermore, other than in respect of recognized privileges, it is unclear under which conditions citizens have the right to deny cooperation.

162. The question whether or not such duties to produce and hand over computer printouts should be recommended de lege ferenda is difficult to judge and requires a differentiation between the duties of witnesses and the duties of defendants or suspected persons. With respect to (innocent) witnesses, there are good arguments for the introduction of such a duty. However, with respect to the defendant or suspect, there are equally good arguments that a duty of active cooperation should be rejected since this duty could impede the accused's right to remain silent and could infringe upon the privilege against self-incrimination. It is true that the wording of article 14(3)g of the International Covenant on Civil and Political Rights only guarantees that, in the determination of any criminal charge against a person, everyone shall be entitled to the minimum guarantee of "not to be compelled to testify against himself or to confess guilt". However, the reasons underlying this guarantee could justify a general privilege against any active self-incrimination.

3. Wire-tapping and "eavesdropping"
Problems of traditional law

163. Tapping telecommunication lines and eavesdropping on computer systems can assist criminal investigations, especially in cases where data are only transmitted and not permanently stored, where data merely cross a country or where permanent observation of telecommunications or computer activities is necessary. These investigative acts, however, constitute not only a highly efficient means of prosecution but also a very severe intrusion into the civil liberties of the person whose communications have been surveyed. This is primarily based on the fact that tapping telecommunication systems and eavesdropping on computers is, generally, a permanent and clandestine intrusion, whereas the above-mentioned powers of entry, search and seizure usually constitute a single, "visible" interference with civil liberties. Consequently, in most countries the statutory requirements for telephone tapping and the recording of telecommunications are much more stringent than for other coercive measures.

164. The question whether the traditional powers of wire-tapping can be applied to tapping other telecommunication services and computer systems is answered differently in various countries. No computer-specific issues arise in legal systems in which the statutory law permits, for example, "surveillance of the telecommunication traffic including the recording of its content". On the other hand, computer-specific problems of interpretation exist, especially in countries that permit only "monitoring of conversations" or "surveillance and tapping of the telecommunication traffic on sound carriers". Such clauses are particularly problematic if an analogous application of coercive powers in criminal procedural law is not jurisprudentially permissible.

Law reform

165. To avoid problems of interpretation, some countries have already enacted or proposed new legislation that would make it possible to tap all kind of telecommunications under the same conditions as must be met for tapping telephone conversations. In Denmark, a new provision of the Administration of Justice Act was passed in 1985, according to which the police. under certain conditions , may "interfere in private communication by ... tapping telephone conversations or other similar telecommunication". In 1986, in the United States, the Electronic Communication Privacy Act extended legal protection and powers of wire-tapping from aural communication (covered by the Omnibus Crime Control and Safe Street Act of 1968) to electronic communication. Similarly, in the Federal Republic of Germany, an amendment to the Criminal Procedural Code in 1989 11extended the possible use of wire-tapping to public telecommunication networks. With respect to future policy-making, such clarifications are helpful since telecommunication between computers probably does not merit more protection than telecommunication between persons.

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