Digital Pat-down: Law Commission proposes further access for investigators to digital data

October 17, 2020

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3 min read

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What's going on here?

The Law Commission has published a report which recommends to the UK Parliament a number of changes regarding the effectiveness of search warrants and access to digital material. Such changes would give UK law enforcement agencies further powers to access online material during criminal investigations.

What does this mean?

If such recommendations were passed into law, authorities could gain access to medical records, remotely stored data and even “journalistic” material. The Law Commission criticised the current legal framework of search warrants, describing it as, “unnecessarily complex, inconsistent, outdated and inefficient” while also failing to “keep pace with the modern digital landscape”.  These comments do not come without justification. The report highlights that there are nearly 180 provisions across 138 different statutes relating to search warrants. Moreover, an investigation by the National Crime Agency in 2016 concluded that around 80% of warrants were “defective” in that such warrants were obtained following incorrect procedures or false allegations. This was in response to the collapse of a series of high profile criminal trials in 2015 resulting from the improper use of warrants. The Commission also recommended a reform of statutory safeguards that protect those subject to search warrants in order to strike an important balance between “competing public interests”.

What's the big picture effect?

If passed, these proposals could be extremely influential in impacting the way evidence is obtained in criminal investigations. One prominent issue is the potential conflict with the right to privacy under Article 8 of the European Convention on Human Rights. Such proposals may make it much easier for UK authorities to access personal data, including medical records, which are confidential to most people beyond local GPs and hospitals. Many may argue that this is a step too far in the world of digital privacy. However, it may be a necessary step in adapting to and investigating future, more technologically based crimes.

Another issue is the possibility that authorities may be granted access to confidential journalistic material. At present, such material is afforded special protection from search warrants via the Police and Criminal Evidence Act 1984. The Society of Editors has described the proposals as “extremely worrying”. The “watering down” of this protection could leave journalists unable to protect their sources and conduct impartial reporting on sensitive criminal matters. Essentially, this could threaten the media’s ability to report in the public’s interest and instead see journalists become victim to state intervention. The Commission is “less convinced” that reform is required in this area but has still called on the Government to consider if such a reform is necessary. In any case, it probably won’t be top of the list.

These will likely be topics for criminal defence and human rights lawyers to fight for in the courts over the next few years as we transition into the digital age. However, with more digital solutions coming thick and fast due to the current pandemic, it may be that such changes to search warrants arrive sooner than we expect. We are already seeing similar moves from international authorities regarding e-commerce and the regulation of tech corporations. The European Commission recently committed to proposing a Digital Services Act by the end of 2020 to curb anti-competitive practices from tech giants (to see our article on that, click here). The influence of digital data spans a variety of practice areas, from criminal to commercial, national and international. This demonstrates a need for wider police powers in the digital sphere.

Do the Law Commission’s proposals go too far? Their purpose is clearly to modernise the law and allow for more streamlined investigations in this digital age. The fast rate of technological innovation means that it makes sense for such proposals to be made. However, a balance must be struck so that existing privacy rights are not overly stepped upon.

Report written by Daniel Furniss

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