Parliament recently amended the Law Enforcement (Powers and Responsibilities) Act 2002 to include sections 76AA to 76AQ. These sections provide that in certain circumstances you are not able to refuse to provide NSW Police with your password or PIN code.
Police now have the power, when they apply for a search warrant or a crime scene warrant, to apply for a “digital access order.” The digital access order gives Police the power to direct the subject of the order to give them any information or assistance reasonable and necessary to enable Police to access data held in or accessible from a computer, and also to similarly provide them any information or assistance required to copy any data or convert the data into a documentary form or any other form that is intelligible form.
Practically speaking this means that a person subject to the order may be required to:
- Disclose their passwords;
- Disclose their PINs;
- Undertake any biometric security features such as fingerprints or retina scans; and
- Otherwise assist Police to access any inscriptions or secreted data.
Digital access orders apply to any computers specified in, or within the scope of the order. The definition of what a “computer” is broadly construed as “an electronic device for storing, processing or transferring information.” As such this section could apply to anything ranging from a mobile phone to a Smart Fridge.
If subject to a digital access order, and you fail to comply with the reasonable directions of Police, you are subject to prosecution under the new amendment. If convicted, the maximum penalty for refusal is 5 years imprisonment and/or a $11,000 fine.
These new amendments now provide New South Wales Police powers that have previously only been exercised by Federal Police. Practically speaking, it made sense for Federal Police to have said power as one of the areas that they predominantly investigated was possession of and transmitting of child pornography.
These new amendments give New South Wales Police, who investigate a much more diverse number of crimes, considerable powers.
As with the propagation of any new Police Power, time will tell whether these powers will fall out of the scope of their original purpose. It will be interesting to see whether digital access orders become a mainstay in all search warrants, and whether the search warrant application process of applying to a Magistrate or Judge by way of a confidential affidavit, will stem their use.
In any event, it is important that individual understand their rights and obligations when subjected to a search warrant or a digital access order.
Please don’t hesitate to contact Green and Associates Solicitors to talk to experienced criminal lawyers.
