A/CONF. 187/10 A/CONF. 187/10 intangible nature of data; and(c)the fact that data may be investigation. To deal with this, laws may provide powers stored in a connected system, located outside the premises allowing the investigating authority to erase data or searched prevent their further use. To protect the data, copying may 30. If a computer system is found at searched premises, be required in order to restore them to their original state the law generally permits law enforcement authorities to when ordered by a judge. If the person concerned gain access to it and inspect its content. This will be complains about the copying and further use of the data, possible if the system is already running, the person the law could require the issue of an official statement concerned opens it voluntarily or a means of access is about the data taken found on the premises. When none of these circumstances 33. The search of a computer system will generally take occurs, the question is whether the law provides the right place as part of a search of premises or places. The legal to enable law enforcement authorities to gain access to the power to search is usually limited to the physical system against the will of the individual concerned boundaries of the searched place. A computer network may 31. Computer systems, programs or data files may be not be located in one single place, but be connected with secured in order to prevent unauthorized access. Access is ther parts of the network by means of fixed or switched then usually gained by identification and authentication communication lines. The question in such cases is whether procedures, whereby the user provides a password- the law allows searches in connected systems, when the manually, embedded in a chip card, or both-or has to systems are not located at the premises searched.Without allow the checking of biometrical marks. Security of data an extended search, there is a risk that the data will be usually involves encryption, which provides for deleted before an additional search warrant can be authentication and protects confidentiality, and which obtained for the place where the data are physically involves the use of an encryption algorithm and located In large networks, it may be practicall more keys. It raises the serious risk that, without the to establish the precise physical location of the data voluntary assistance of the system keeper or the entitled 34. The following outlines the legal basis for an authority person, no access will be obtained to the computer system to conduct an extensive search. The person who resides at or the data being sought. Some laws, therefore, require the premises to be searched is entitled to gain access to the system keepers to allow access to the system or the data, connected computer system and to use its functions and punishing non-compliance by using contempt of court storage capacity. He or she can control the data without the rules. Such laws may not apply where a system operator is necessity of going elsewhere. When searched, this person also the suspect of the crime, however, because this would is put under a legal obligation to submit to a search of the violate rules or principles against self-incrimination. premises that are physically under his or her control. It can Individuals who have other legal reasons not to cooperate, be argued that the same rules should apply to the data that such as being related to the suspect or those who have the person in question has factual access to, even though professional obligations to keep secrets, may also be they may be located elsewhere. It would follow that the exempt. In some cases, if there is no one present to whom scope of such an extended search would be limited an order to assist can be given, any other person (usually activities that the person in question is authorized to an external expert) may be ordered to assist. Allowing undertake with regard to the connected system and data mere access to the data may not be sufficient if it is and that the individual's rights are not infringed to any encrypted. In such cases, laws may compel further greater degree than permitted by the basic search. It would cooperation to transform the data into a readable format. be possible to restrict such powers to investigations of 32. Data as such are intangible, so traditional powers of Serious crimes or to cases where immediate action is seizure generally do not apply. In the course of a criminal required in order to prevent the loss of evidence, or both investigation, tangible objects will either be seized ar Other limitations might apply when the ted system taken away,or measures will be taken to ensure that no one or data sought is located in a foreign Jurisdiction(see except the investigating authorities can dispose of the ara.59 below) objects. With data, it is usually sufficient to make a copy. 35. The searching and selection of data in a computer Additional steps are required, however, where data are system raises a number of additional legal problems. The hazardous, illegal or valuable, or where there is a first is how specific the judicial order needs to be about the possibility of further harm to victims or to the nature and format of the data sought in order to be lawfulA/CONF.187/10 A/CONF.187/10 8 intangible nature of data; and (c) the fact that data may be stored in a connected system, located outside the premises searched. 30. If a computer system is found at searched premises, the law generally permits law enforcement authorities to gain access to it and inspect its content. This will be possible if the system is already running, the person concerned opens it voluntarily or a means of access is found on the premises. When none of these circumstances occurs, the question is whether the law provides the right to enable law enforcement authorities to gain access to the system against the will of the individual concerned. 31. Computer systems, programs or data files may be secured in order to prevent unauthorized access. Access is then usually gained by identification and authentication procedures, whereby the user provides a password— manually, embedded in a chip card, or both—or has to allow the checking of biometrical marks. Security of data usually involves encryption, which provides for authentication and protects confidentiality, and which involves the use of an encryption algorithm and one or more keys. It raises the serious risk that, without the voluntary assistance of the system keeper or the entitled person, no access will be obtained to the computer system or the data being sought. Some laws, therefore, require system keepers to allow access to the system or the data, punishing non-compliance by using contempt of court rules. Such laws may not apply where a system operator is also the suspect of the crime, however, because this would violate rules or principles against self-incrimination. Individuals who have other legal reasons not to cooperate, such as being related to the suspect or those who have professional obligations to keep secrets, may also be exempt. In some cases, if there is no one present to whom an order to assist can be given, any other person (usually an external expert) may be ordered to assist. Allowing mere access to the data may not be sufficient if it is encrypted. In such cases, laws may compel further cooperation to transform the data into a readable format. 32. Data as such are intangible, so traditional powers of seizure generally do not apply. In the course of a criminal investigation, tangible objects will either be seized and taken away, or measures will be taken to ensure that no one except the investigating authorities can dispose of the objects. With data, it is usually sufficient to make a copy. Additional steps are required, however, where data are hazardous, illegal or valuable, or where there is a possibility of further harm to victims or to the investigation. To deal with this, laws may provide powers allowing the investigating authority to erase data or prevent their further use. To protect the data, copying may be required in order to restore them to their original state when ordered by a judge. If the person concerned complains about the copying and further use of the data, the law could require the issue of an official statement about the data taken. 33. The search of a computer system will generally take place as part of a search of premises or places. The legal power to search is usually limited to the physical boundaries of the searched place. A computer network may not be located in one single place, but be connected with other parts of the network by means of fixed or switched communication lines. The question in such cases is whether the law allows searches in connected systems, when the systems are not located at the premises searched. Without an extended search, there is a risk that the data will be deleted before an additional search warrant can be obtained for the place where the data are physically located. In large networks, it may be practically impossible to establish the precise physical location of the data. 34. The following outlines the legal basis for an authority to conduct an extensive search. The person who resides at the premises to be searched is entitled to gain access to the connected computer system and to use its functions and storage capacity. He or she can control the data without the necessity of going elsewhere. When searched, this person is put under a legal obligation to submit to a search of the premises that are physically under his or her control. It can be argued that the same rules should apply to the data that the person in question has factual access to, even though they may be located elsewhere. It would follow that the scope of such an extended search would be limited to activities that the person in question is authorized to undertake with regard to the connected system and data, and that the individual’s rights are not infringed to any greater degree than permitted by the basic search. It would be possible to restrict such powers to investigations of serious crimes or to cases where immediate action is required in order to prevent the loss of evidence, or both. Other limitations might apply when the connected system or data sought is located in a foreign jurisdiction (see para. 59 below). 35. The searching and selection of data in a computer system raises a number of additional legal problems. The first is how specific the judicial order needs to be about the nature and format of the data sought in order to be lawful