Wednesday 23 May 2012

data in computer is intangible property

This demonstrates a shift in what can be seized which is responsive to the peculiarities of the technology. The shift is from seizure of things that are tangible to seizure of output that is intelligible. The definitions of "intangible" and "intelligible" from The Oxford English Dictionary (2d ed.) prepared by J.A. Simpson and E.S.C. Weiner, Clarendon Press, Oxford,1989 follow:
intangible: Not tangible ... incapable of being touched not cognizable by the sense of touch impalpable. ... That cannot be grasped mentally. intelligible: Capable of understanding able to understand intelligent. ... Capable of being understood that may be apprehended by the intellect comprehensible.
 The storage of data on a computer's hard disk is taking place at such a minute level that it raises the question of whether an electromagnetic effect on a computer storage disk is in any real sense tangible. Although, it can be sensed with proper tools and interpreted and thereby made intelligible, can it be said in any ordinary sense to be tangible? While this is an interesting question, the esoterics of the debate between whether something is matter or energy or anything in between should not be the basis on which to interpret our criminal law, at least as it relates to the charge before the Court. It makes sense to move on to a more useful definition, such as the one of intelligible output  To return to the search and seizure at bar, things were seized, the computer and diskettes, and, later, information was extracted. This is consistent with current procedures under s. 487.
 The fact that the police were really interested in the data inside the computer does not mean they have seized the wrong things. Under the law as it now exists, the seizure was entirely appropriate. This seizure is not unlike seizure of a blood sample. The police don't want the blood, they want the information the blood can provide. As long as the blood (the thing) has been properly seized (that is, privacy respected) the information it contains can be extracted at a later date.
email carries reasonable expectation of privacye-mail with the ISP carries a reasonable expectation of privacy. Therefore, judicial pre-authorization (a warrant) will usually be required to search and seize it.Warrantless searches are permitted under certain circumstances. The admissibility of evidence which emerges from a warrantless search can sometimes depend on the nature of the privacy invaded. Invasion of one's body without warrant (blood) may be seen as more serious than invasion of one's car without warrant. Therefore, I wish to briefly address the nature of e-mail privacy while the e-mail is with the ISP.
¶ 72 Before moving to the e-mail message I will address the cover. The envelope on first class mail shields the contents of the message. The information on the cover carries a lower expectation of privacy than does the message inside.
¶ 73 In the e-mail environment, the headers (hidden and exposed) can be likened to the information on the envelope. The message is directed by its headers. Much repair work to e-mail can be done through headers. Like the outside of the envelope, the headers have a lower expectation of privacy.
¶ 74 The difference between the two types of cover is that in first class mail the cover is respected. In e-mail, the cover is (or was in June of 1996) routinely violated in order to repair the technology. There are two or three levels of violation depending on the type of repair done and excluding a repair done by deleting the message or by enlarging the e-mail box. The size of the attachments may be viewed. The list of attachment names may be viewed. The message itself may be opened which can include looking at the message and the attachments or either. These facts about the technology help me to conclude the e-mail message is unlike first class mail in the level of privacy that it can attract.
electronic data is an intangible much like a bank credit balance as found in Re Banque Royale du Canada v. The Queen (1985), 18 C.C.C. (3d) 98 (PQ C.A.). In my view there is a difference between a credit balance showing sums on deposit in a bank and electronic data on a computer. Having said that, James A. Fontana in his text The Law of Search and Seizure in Canada, (4th Edition) argues as follows:
This presupposes, however, that the electronically stored evidentiary data is subject to seizure in the first place. Under the existing law, such a supposition may not be valid. Section 487 permits the issuance of a search warrant to seize "anything" which "will afford evidence". The focus of section is on "thing". Much of the jurisprudence makes it clear that a search warrant cannot issue for the seizure of intangibles. While documents in a filing cabinet are clearly tangibles, documents stored electronically are not. They may be rendered into tangible form by making a printout or "hard copy", but at the material time, that is, at the time the warrant is issued, they are in an intangible state. Past reviews of the validity of computer searches under power of warrant have not addressed this issue nor the parallel issue: can such a warrant authorize the executing officer to render the data into physical form in order to seize it?
A.J. No. 155 Action No. 9703 0841C.1, Alberta Court of Queen’s Bench Judicial District of Edmonton, 10
February 1998. R
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