It used to be simple. The right sort of Queensland search warrant could force you to give up the security to your electronic devices- for example, your phone, your iPad, your external hard-drive, your computer. Now it’s more complicated. New laws came into force in December 2016, and some police officers believe they are entitled to go much further than your machine – to demand the passwords to your Facebook account, your email account, your online banking account, your Snapchat, Tinder, Grindr, Kik, Instagram, Pornhub, Dropbox, OneDrive, and Courier-Mail accounts; in fact, your whole digital life. If you don’t tell them these passwords you are likely to be charged with a serious crime.
The odd thing about it is, the information is not stored on your device. It is on some other computer, in some other place. Much of it is probably stored, physically, in California, but even the Silicon Valley giants are moving their data offshore. You can usually get to that information from any phone or computer connected to the internet, anywhere in the world. It has no connection at all to the place searched under the warrant, nor to the devices found at that place.
In one recent case, detectives from the Queensland Police Service have gone even further than that. They changed the passwords. They “seized” control over the on-line accounts and threatened the owner with criminal charges if he tried to access his own accounts.
Now, if the police turn up with a search warrant, it’s very often at an anti-social hour, in the usual hours of sleep. Police officers work awkward shifts. They like to find people at home, and it doesn’t hurt the police cause if the suspect is a bit groggy and befuddled from having just been woken at a strange hour. Some people (very foolishly) are reluctant to call a lawyer or a friend in the middle of the night. It’s in that unfamiliar and awkward situation that people are being confronted with demands by police officers to give up their passwords, then and there, or be arrested. Even if they have the good sense to phone a solicitor, the confused state of the law as it presently stands makes it difficult for even a lawyer to be sure where the line is between lawfully maintained silence and committing a serious crime, a crime for which their client could go to jail for up to 5 years. The situation is unacceptable. We are all entitled to know where that line is drawn.
How did this unfortunate state of things come about? Well, it’s hard to avoid the idea that someone tried to pull a sneaky, swifty trick. A very large, very important piece of legislation was put through the Queensland Parliament last year; the Serious and Organised Crime Legislation Amendment Act of 2016. The main point of it was to replace Premier Campbell Newman’s awful criminal organisation laws. In all the debate about bikies and gangs, not much attention was paid to one small change to the words of a definition. It said, simply:
You might think it makes sense, if a police officer is searching an office, that a computer terminal can be used to access information on an external hard drive, or the server down the hall. To a curious police officer though, this amendment means much more. She might believe she is authorised by it to access any information the device can get to, anywhere in the world. On the face of the definition, maybe she would be right.
The complication is that the definition operates within the section that provides the search power. That section talks about “information stored on or accessible only by using the storage device”. No-one thought to amend that bit. Put the new definition and the existing section together and the result is almost incomprehensible. It looks something like this:
154 Order in search warrant about information necessary to access information stored electronically[A search warrant may] order a specified person…
(a) to give a police officer access to the storage device and the access information (including information needed to read and access information accessible through the device) and any other information or assistance necessary for the police officer to be able to use the storage device to gain access to stored information (including information accessible through the device) that is accessible only by using the access information; and
(b) to allow a police officer given access to a storage device to do any of the following in relation to stored information (including information accessible through the device) stored on (or accessible through) or accessible only by using the storage device—
(i) use the access information to gain access to the stored information;
(ii) examine the stored information to find out whether it may be evidence of the commission of an offence….
The word “only”, as you might have noticed, appears in the second paragraph, but not the first. Does that matter? Does that one word, “only”, do enough work to limit the scope of the power to devices that have some sort of exclusive link to the place being searched? Or did the new definition of “stored” extend the scope of a Queensland search warrant to every computer in the world if it can be accessed through the internet from a place searched in Queensland? For the time being, no-one knows the answers, not until a superior court of record decides what this mish-mash of words and concepts is going to mean.
In the mean-time, curious police officers are likely to continue demanding passwords, and backing their demands up with the threat of prosecution. It may be a bluff. It may be their honest appraisal of the law. The lawyers, if they are asked, may well have different opinions. The word “only” must mean something in there. The people on the receiving end of police demands (who may not even be suspects under investigation) will have to decide whether to take the legal and practical risks. Giving up the passwords has its risks as well. There may be legal consequences for unlawfully disclosing private information, or practical consequences for providing evidence that might incriminate friends or family. As a wise lawyer is fond of saying, even if you can beat the rap, you can’t beat the ride.
For now, no-one knows for sure where they stand, and that is a sad place for our lawmakers to have put us.
Ken Mackenzie is an accredited specialist in criminal law, and the Principal of Mackenzie Mitchell Solicitors
Note – Federal (also known as Commonwealth) Australian law, also allows for search warrants and access to computers and electronic devices. Federal warrants are goverened by a completely different set of laws. This article only discusses warrants issued under the law of the State of Queensland as the law stands on 26 June 2017. Searches warrants may be issued in Queensland under federal law, even to officers of the Queensland Police Service.