The recent court appearance of a man in WA has served as a reminder that failing to comply with a police order to unlock your phone (a data access order) could result in arrest.
On Thursday, the Australian Federal Police (AFP), in a joint statement with the WA Police Force, announced the court appearance of a 25-year-old man for allegedly refusing to comply with a data access order.
The police executed a Commonwealth search warrant at the man’s home and seized electronic devices, about $9,000 in cash and substances that the AFP said is suspected to be steroids and cannabis. But, the man allegedly refused to provide PIN codes to enable investigators to access two of the mobile phones.
Under Australian law, a data access order may “only be made against a person who is suspected of committing an offence attracting a penalty of five years imprisonment or more, and who has the relevant knowledge necessary to gain access to the device”. To break that down, that means the crime the individual/group of individuals is allegedly (and potentially) going to be charged with, must be serious enough that it would carry a penalty of more than five years. And that last bit means the order can only be made against a person who knows the PIN.
After a data access order has been issued by a magistrate, an offence is immediately created for failure to obey it.
The maximum penalty for this offence is five years imprisonment as is commensurate with offences relating to the possession of child exploitation material.
As the explanatory memorandum of the overarching Bill explains, this ensures that person being investigated for such offences who disobeys an order faces a serious penalty.
In the AFP/WA Police statement, it was said one of the mobile phones was wet when it was found by police, and the man allegedly had wet hands and forearms when he was located in the house.
They said he has been charged with one count of failed to comply with an order, contrary to section 3LA (6) of the Crimes Act 1914.
Section 3LA gives law enforcement officers the power to compel a person to reveal their private encryption keys and PINs or passwords, enabling the officers to access information held on a computer for the purpose of investigating and prosecuting a computer related offence.
A failure to comply with the law enforcement officer’s request is punishable by up to six months’ imprisonment.
AFP Acting Inspector Chris Colley said the penalties were significant if someone refused to provide access to electronic devices in matters where police were investigating a serious offence.
“If convicted, this man faces a potential maximum penalty of 10 years’ imprisonment,” Colley said.