In this series we study Covert Investigation as a means to detection. This includes why investigate covertly, the drawbacks, directed and intrusive surveillance, interception of communications, mobile phones, computers, CHIS's and the legal issues including the effect of the Human Rights legislation

The articles are excerpts from a new book from Blackstone’s, 'Covert Investigation' 2nd Edition, written by two highly experienced former detectives (see ‘About the Authors’ at the end of the article).

What Action Requires a Directed Surveillance Authority in Relation to the Investigation of Computers?

In circumstances where a kidnapper or blackmailer is communicating with the victim via email, as with the monitoring of phone calls in such circumstances, with the written consent of one of the parties to the communication, the communication may be lawfully monitored under a directed surveillance authority (ss 3(2), 26(2), and 28 RIPA).

A directed surveillance may also be appropriate where the surveillance is to be carried out in an Internet café, but the exact tactics to be employed and the desired product would dictate the exact authority regime required. For instance, if the investigator’s intention was to intercept emails being sent from a terminal in the café, then an interception warrant would be required. A directed surveillance authority would be appropriate in circumstances where the intention was to monitor a suspect’s use of the computer by camera or by the deployment of surveillance officers in the café, but where the use of a camera meant that both sides of chat-room conversation could be seen and this was the purpose of the surveillance then an interception warrant would be required.

What Action Requires an Intrusive Surveillance Authority in Relation to the Investigation of Computers?

Where surveillance is to be conducted on use made of a computer in private residential dwellings, hotel rooms, office premises or in a private vehicle, an intrusive surveillance authority with OSC prior approval will be required. If the surveillance also requires entry into and trespass onto property, and or interference with the computer that is to be monitored, then a property interference authority will also be required (see Chapters 2, 3, and 4).

For example, the deployment of devices onto a home computer, either by physical attachment or remotely via software, will necessitate interference with property prior to the surveillance being carried out. Because the surveillance is being carried out in a dwelling, it will be intrusive. Similarly, remote activation of a home computer will constitute both an interference with property (the remote activation of the computer) and intrusive surveillance (the conduct of surveillance in a private dwelling).

What Action Requires a Property Interference Authority in Relation to the Investigation of Computers?

Any action that interferes with the hardware of a computer or alters the software profile of a particular computer will require authority under Part III PA97. This would include, for instance, the covert deployment of a physical device, the loading of software onto a computer without the computer owner’s knowledge, or the remote covert activation of a computer. (The latter would additionally require intrusive surveillance authority.)

Where it is proposed to deploy a physical device onto a keyboard or covertly to copy the contents of a hard drive, and the computer is on private premises, then the authorization will have to cover all preparatory acts required to facilitate such a deployment or action, as well as the deployment or action itself. Recovery of equipment will also have to be properly authorized.

Investigators should be aware that certain software remotely deployed will enable alteration of data, an action which might render the computer and any data stored therein unreliable and inadmissible as evidence. The advice of the relevant Computer Crime Unit should be sought.

About the authors: Clive Harfield is Associate Professor of Law at the University of Wollongong, NSW. He previously served with the National Crime Squad and as a Detective Inspector and BCU Intelligence and Covert Operations Manager for Warwickshire Police. Karen Harfield is a Senior Executive with the Australian Crime Commission who previously served with HM Inspector of Constabulary and as Head of Intelligence for Warwickshire Police. Clive and Karen Harfield are also co-authors of 'Intelligence', another Blackstone's Practical Policing title.

To purchase a copy of  'Covert Investigation 2nd edition' click here