Restricting seizure of computer evidence could have huge consequences

Supreme Court decision could impact what gardaí can seize in child pornography raids

The judgment is causing confusion among Garda management and other investigatory authorities as to how they are supposed to determine what files are relevant without examining them. Photograph:  Getty Images

The judgment is causing confusion among Garda management and other investigatory authorities as to how they are supposed to determine what files are relevant without examining them. Photograph: Getty Images

 

A Supreme Court ruling restricting the seizure of electronic evidence could have massive implications for future investigations, particularly those involving child pornography, according to criminal justice experts.

The judgment, which was issued last May, states that investigators cannot seize large amounts of electronic files from suspects and then sift through them later to find ones relevant to the investigation.

It states that authorities can only examine files that are relevant to the investigation. The judgment is causing confusion among Garda management and other investigatory authorities as to how they are supposed to determine what files are relevant without examining them.

The judgment could have potentially serious consequences for investigations involving large amounts of electronic data, such as white collar crime or child pornography investigations.

In May 2014, officers from the Competition and Consumer Protection Commission conducted a dawn raid at the plant of Irish Cement, a subsidiary of CRH, at Platin, Co Meath.

Made copies

The commission, which was investigating allegations of price fixing, made copies of 100,000 emails belonging to a senior executive of the cement giant.

The company later took proceedings alleging the commission was not entitled to examine any electronic files unrelated to the business of ICL.

Mr Justice Peter Charleton ruled that the search was lawful but that the problem was the seizure of an entire email account of thousands of unrelated mails without justification.

Barrister Mark Tottenham believes the ruling could affect not just regulatory investigations but also investigations by the Garda.

“If someone is doing a child porn raid they’re going to be taking exactly the same thing that they took in [the competition authority] case.”

He said that given the amount of files involved in such cases, “the idea that you would go in and sit down at the computer and say, ‘Okay, we’re going to take this email and not this email’ – that doesn’t make sense.”

“The nature of dawn raids is they have to be done in a hurry and by surprise and probably dealing with people who aren’t very happy you’re there.”

Garda sources say they are concerned the ruling will complicate child pornography investigations which usually involved unannounced raids and sometimes many thousands of computer files.

‘Child porn’

“The problem is we don’t know what we’re looking for when we go in, except that we’re looking for child porn. We don’t know what the file names will be because of course they are never simply filed under ‘child abuse’,” a member of the Garda Computer Crime Unit said.

“We have no choice but to take everything and go through them later bit by bit and classifying them. How are we supposed know what is or isn’t relevant without examining everything?”

It is understood lawyers for the Garda are examining the judgment and considering how it could affect future investigations. One proposal being considered is the establishment of an independent authority which would examine electronic data and determine what is or isn’t relevant to a case.

Mr Tottenham said “nobody really knows” what affect the ruling will have. “There is certainly confusion and concern about what knock-on effect this could have on other cases.”

A source in the competition authority said there is huge confusion within the organisation as to what it is allowed to seize during future unannounced raids.