Seizing a mobile phone during a search and obtaining information from text messages | In Principle

One of the basic items that will probably be secured during a law enforcement search is a mobile phone or other electronic device, if there is a “reasonable suspicion” that it may contain information proving that a criminal act has been committed. Mobile phones are an attractive source of information about the holder’s life which investigators can then use as evidence. But what about the confidentiality of correspondence?

According to Art. 219 of the Criminal Procedure Code, the purpose of a search is, among other things, to find items that may constitute evidence in a case or are subject to seizure in criminal proceedings. The search is carried out by the prosecutor, or, at the request of the court or the prosecutor, by the Police or other authorised body.

As a result of a search (or voluntary surrender, which the authority should request before proceeding with a search), items may be seized which, according to Art. 217 of the code, may constitute evidence in the case or are necessary to secure fines, criminal measures of a financial nature, forfeiture, compensatory measures, or claims for damages.

Under Art. 228 of the Criminal Procedure Code, after inspection, items turned over or found in the course of a search must be taken away or delivered for safekeeping to a trustworthy person, indicating the obligation to present the items upon request of the authority conducting the proceedings.

If the seized items are found to be unnecessary for criminal proceedings, they should be returned immediately to the rightful holder (we write in detail about the search and seizure of items here).

A legal gap

The regulations establish a general framework for searches and seizures of items. However, they do not regulate in detail the procedure to be followed in the case of inspection of a mobile phone or laptop and disclosure of correspondence from text messages, emails or voice messages in the course of this process. But such regulations would be very helpful. Practice shows that law enforcement authorities exploit their absence and sometimes intrude too much on citizens’ privacy, even in cases where seizure of the device is really unnecessary.

This raises the question whether law enforcement authorities should be required to obtain consent through a court order before commencing inspection of such devices, as is the case with an order to record interviews or other correspondence contained in seized property.

It would seem that the answer is provided by Art. 225 of the Criminal Procedure Code, stating that if a person whose item has been seized or who undergoes a search declares that a writing or other document turned over or found during a search contains classified information or information covered by professional secrecy or other legally protected secret, or is of a personal character, the authority carrying out the operation shall immediately turn over the writing or other document, without reading it, to the prosecutor or court in a sealed package.

However, can a mobile phone be regarded as “another document,” as an information transmission medium? According to Art. 2(5) of the Electronic Services Act, a mobile phone is primarily a means of electronic communication, the main purpose of which is individual communication at a distance via data transmission between teleinformatic systems. Nonetheless, a mobile phone is also a database of files containing correspondence in the form of text messages, emails and voicemail recordings. The fact that they are in electronic form does not deprive them of the quality of correspondence, which should be protected by law. In addition, seizure of the phone does not stop the inflow of further text messages, which means that law enforcement authorities have access to the ongoing correspondence of the owner or holder of the phone. Such correspondence should be protected in every legal act, in an equal and uncompromising way.

Operational monitoring and protection of correspondence

Law enforcement authorities also obtain the content of correspondence in the course of operational monitoring. This is the “ultimate” method of operational work aimed at collecting evidence in the case. Monitoring and recording telephone conversations is one of its elements, commonly referred to as “wiretapping.”

Polish law provides for two forms of wiretapping: operational and procedural. The former is conducted secretly and aimed at prevention or detection of crime or identification of the perpetrators, as well as obtaining and recording evidence of intentional crimes prosecuted by public indictment (each service has a different catalogue of crimes entitling it to order wiretapping).

Specific laws, such as the act on the Police, the Internal Security Agency, the Central Anti-Corruption Bureau, the Border Guard, etc., strictly define the premises which must exist in order to apply operational monitoring. The procedural route applicable to a given authority is also regulated. Moreover, operational monitoring should be applied in cases where other measures have proved ineffective or useless.

On the other hand, procedural monitoring is ordered in relation to the suspect, the defendant, and the victim, or any other person with whom the defendant may come into contact or who may be associated with the perpetrator or with a threat of a crime. A decision of the court is needed to order it, and in urgent cases it may be ordered by the prosecutor (the prosecutor must then submit a motion to the court within three days for approval of the decision).

Art. 237 of the Criminal Procedure Code enumerates a catalogue of crimes which justify the use of monitoring (if there is a well-founded fear of commission of such offences or proceedings are underway involving such offences). Although in specific acts regulating the use of operational monitoring the catalogue of crimes is wider, not every type of crime justifies the violation of fundamental constitutional rights and freedoms of a citizen—which certainly include the protection of correspondence.

This shows that access to private correspondence in the course of operational monitoring is subject to a number of objections—unlike seizure of a phone during a search, where these objections are practically non-existent.

Is this difference in security standards justified?

Monitoring and recording of conversations is a particularly sensitive issue, as it affects such important and indispensable components of the rule of law as the individual’s personal freedom, the confidentiality of communications, and the right to privacy. Interference with individual freedoms and the resulting rights enabling self-determination is possible only in situations defined by law, which must be strictly observed, without allowing their scope to be extended.

Considering the effect of access to the content of correspondence, the seizure of items such as a telephone, tablet or PC is no different from operational monitoring resulting in recording the content of telephone conversations or transmissions of information, including correspondence sent by email. It makes no difference whether the content of the telephone conversation was obtained as a result of a monitoring order or as a result of seizure of a mobile phone or other IT equipment containing private correspondence. Therefore, this method of obtaining evidence should be subject to the same legal regulations and protections.

However, if in the case described above Art. 225 of the Criminal Procedure Code is recognised as a legal form of protection, the officers seizing a telephone should be informed that the device contains legally protected secrets (correspondence) or content of a personal nature.

Urszula Lewczuk, Business Crime practice, Wardyński & Partners