Chris Patterson “Remote Searching: Trawling in the Cloud” [2017] NZCLR 29

Abstract

The Search and Surveillance Act 2012 (SSA) allows the Police and other enforcement agencies to perform remote searches of data. All searches are, however, subject to the overriding but not absolute principles of the New Zealand Bill of Rights Act 1990 (the BORA), in particular s 21. The application of the BORA should provide a balance between the acts of an enforcement agency carrying out its investigative role and an individual’s right not to be subjected to unreasonable search and seizure. Such a right should extend to the protection of an individual’s privacy in respect to data stored on internet cloud based servers, requiring enforcement agencies to obtain a warrant in order to search that data. However increasingly, data is stored offshore which gives rise to a number of jurisdictional issues. The few co-operative arrangements that exist between states are at present considered necessary in order to preventreciprocated aggressive searches.¹ Any search undertaken pursuant to these arrangements, and in accordance with the SSA, will in most cases be considered a lawful search. However, if a search is undertaken of a target computer from which the location is unknown or authority has not been granted by the governing territory, should the search be considered unlawful?   This article will argue that any Court faced with a remote cross border search will need to consider the implications and application of the BORA as well as whether or not the SSA has an extra territorial effect. This article will also argue that data obtained via remote searching is likely to be considered unlawful in terms of the minimum rights prescribed by the BORA. The article concludes with the proposition that legislative amendments are necessary to provide better guidance and clarity as to the scope of remote searching.