An Garda Síochána has asked the Government to draw up and have the Oireachtas enact a Bill to extend its members’ powers to require any person whose premises are searched under warrant to provide them with pin number access or decryption keys to any IT device they may come across in the course of their search.
This power is contained in a general scheme of the Bill recently published by the Minister for Justice.
This legislation would, if enacted not merely codify existing Garda powers but also extend them to cases and situations not now covered.
To take one example, under section 9, Gardaí will be given a general power to stop and search any person or vehicle in a public place who the Gardai have reasonable grounds for suspecting to be carrying a “relevant article”, and to seize it. Moreover, the searching Garda may require the person to be searched to accompany them to a Garda custody facility.
What does the term “relevant article” include? It includes anything “stolen or unlawfully obtained”. This is worrying. A thing can be unlawfully obtained without the commission of a crime by the person searched.
For instance, something obtained by a breach of confidence or breach of legal duty such as a document obtained or leaked in breach of the Official Secrets Act might be a “relevant article” under this definition. It might even include a Department of Health confidential contract. It might include bank records in the hands of a journalist. The category of potential “relevant articles” is potentially vast.
From the viewpoint of a private citizen, the powers to be given to Gardaí to require access to computers, I-pads, laptops, and mobile phones is also worrying. There is no new express duty to volunteer all relevant facts to the judge issuing a search warrant – merely a duty to answer the judge’s questions if any.
If a search warrant for a premises yields nothing mentioned in the warrant, the searching members may still demand the production of these items and require any person there to provide access to them by pass words or decryption keys.
With the exception of legal and other privilege for which special protections are provided, it will be an offence punishable by arrest and imprisonment for up to five years not to Gardaí grant access to such IT equipment and the information stored on them.
Private citizens have legitimate spheres of personal privacy. Your personal messages to family and friends, your opinions and plans, your political activities, your personal secrets, your friends’ secrets and other diary-like information may be stored on such computers. Once they are read they are known. Once the agents of the state know them, they cannot be “un-known”.
Is it legitimate to give such powers to Gardaí searching a house for, say, controlled drugs? Can they properly ask for access to a sibling’s computer to check on whether there might be information there tending to identify a supplier?
If the state’s agents violate privacy and secure information that might compromise you or give them leverage over you to, say, become an informer, what can you do about it? In your own house, you may risk immediate arrest for failing to grant them access to all your private secrets.
By analogy, if the KGB had visited Alexander Solzhenitsyn and conducted a search of his flat and had asked him to disclose the whereabouts of diaries which they knew he had compiled and given to others for safe-keeping under pain of facing five years in the Lubyanka, what would we think of that?
Or if contemporary policemen in Xingjiang demand similar access to Uyghurs’ mobile phones when searching their homes, what do we make of that?
You don’t get to ask a lawyer for advice during a search of your home. Is there even to be a defence of “reasonable defence of privacy”? It’s not in the Bill.
Someone failing to grant access to their devices may be arrested and charged before the District Court because the maximum penalty is five years’ imprisonment on indictment.
You may be briefly re-assured that there are to be codes of practice in relation to the use of these proposed statutory powers. But breach of these codes or of the terms of the proposed new law by arresting or searching or seizing Gardaí does not mean that any evidence thereby arising becomes automatically inadmissible.
This Bill needs additional protections and constraints. It can’t just be rubber-stamped through the Oireachtas like most Bills these days which are guillotined through both Houses using the coalition’s large majority.
The constitutional privacy of the individual needs concrete expression and workable safeguards. You never know who may be directing police operations in the next few years.