The Minns government is set to introduce new laws into New South Wales parliament, so that the power NSW police has to require people to provide access to their digital devices, in order to a facilitate scan and download of their content on execution of a warrant and at threat of prison, is available during more routine arrests, roadside stops and other lawful detentions.
The October 2022-enacted digital evidence access order regime provides that police can obtain a DEAO when executing search and crime scene warrants, and if the subject of the order refuses this, then it’s an offence carrying up to 5 years prison time. And as the section containing this criminal offence notes, this measure overrides the common law right against self-incrimination.
However, once NSW police officers have obtained access to a suspect’s phone, they don’t simply scroll through the owner’s latest social media posts, as rather, they employ a device and software developed by Israeli digital forensics company Cellebrite that once connected to a civilian’s phone downloads its entire content, including all deleted messages and images.
God damn, why is a legal firm paying journalists to write slop like this on their website? Half of it is a political rant with no relevance.
The only relevant point is this: should police require an additional warrant before applying for a DEAO?
Arguably no, not if they already have the device. The warrant is only really needed to gain access to the device and grant probable cause to search for it. If you have both of those already through lawful seizure after witnessing a crime take place the warrant doesn’t provide you any additional powers.
A DEAO still needs to be signed off on by an authorised officer of the judiciary, and the cop applying for it can be charged with perjury if they lie on the application. The evidence is also very likely to be thrown out.
The point is NSW warrants aren’t a meaningful check on power, and this loser Paul Gregoire is just jerking off by framing it as such.
Write to Gregoire or the legal firm and tell them. Maybe Gregoire will do a follow-up piece to explain himself (?)