New Standard Operating Procedures For The Investigation, Search, Access, Or Seizure Of Cyber Articles
The Department of Police recently published Standard Operating Procedures (SOPs) for the Investigation, Search, Access, or Seizure of Articles under Section 26 of the Cybercrimes Act 19 of 2020 (CCA). These SOPs aim to ensure that investigations conducted by the South African Police Service (SAPS) are conducted in compliance with legislation. They also seek to protect the constitutional rights to privacy and a fair trial during the exercise of SAPS’ powers granted by the CCA.
The SOPs, once publicized in the Government Gazette, must be followed not only by SAPS members but also by any other individuals or agencies with investigative powers concerning offenses committed through the use of cyber articles.
Under the CCA, a cyber article encompasses a wide range of digital entities, including data, computer programs, computer data storage media, and computer systems. These articles are connected to, may provide evidence of, or are intended for the commission of an offense or a suspected offense.
Only police officials are authorized to search for, seize, or access cyber articles. However, they may be assisted by investigators, such as digital forensic experts, if necessary, as long as the proper authorization has been obtained. It is crucial for police officials to refuse any assistance offered by unauthorized individuals, potentially suspects, during an investigation.
The SOPs outline four ways in which police officials can be authorized to search for and seize cyber articles. Firstly, they can conduct a search and seizure without a warrant if they have obtained written consent from an individual with lawful authority. In this case, the police official will have the same powers as if they were executing a search warrant.
Secondly, police officials can exercise full search and seizure powers without a warrant if they can demonstrate urgency and exceptional circumstances. They must reasonably believe that a search warrant would be issued if applied for and that any delay would enable the object of the search and seizure to be concealed or destroyed.
Thirdly, police officials have limited powers to seize cyber articles without a warrant during an arrest made under the CCA. However, they cannot access the data or computer programs until they have obtained a warrant, unless urgency is present.
The specific authorization required for each search or seizure depends on the circumstances. It may involve obtaining a warrant under the CCA for relevant cyber articles or securing a subpoena under the Criminal Procedure Act 51 of 1977 for historical information such as bank records or cell phone records.
Regarding the methods employed during the search, access, or seizure of cyber articles, there are two fundamental steps involved. The SOPs grant SAPS officers the authority to search and document any information necessary for the subsequent analysis of a cyber article, including passwords, email accounts, and Personal Identification Numbers (PINs). Importantly, officials can only use instruments, devices, equipment, passwords, decryption keys, or data to gain access to a cyber article to the extent specified in the warrant.
In cases where the cyber article belongs to an innocent third party or a witness, SAPS must strive to follow the least intrusive process for acquiring evidence. The initial approach is to seek consent from the third party, only resorting to obtaining a warrant if consent is refused. This principle applies when the data is held by a third party or independent data holder.
It is critical for individuals to understand the powers conferred upon SAPS and the circumstances under which they may be exercised. While the SOPs aim to establish separate procedures for the search, access, and seizure of cyber articles, the practical implementation of these nuanced procedures remains to be seen, given the apparent cybersecurity skills gap in South Africa.
By adhering to these SOPs, SAPS aims to effectively combat cybercrime while upholding privacy rights and ensuring fair trial processes. The newly established guidelines strive to strike a balance between law enforcement needs and safeguarding individual rights in the digital age.
In conclusion, the publication of Standard Operating Procedures for the Investigation, Search, Access, or Seizure of Cyber Articles signifies a key step in South Africa’s efforts to address cybercrime. These guidelines provide clarity to police officials and other authorized individuals while preserving the constitutional rights of citizens. As technology continues to evolve, it is crucial for law enforcement agencies to adapt and establish effective frameworks to combat cyber threats while safeguarding privacy and maintaining a fair justice system.
