A leading barrister has confirmed that unless the police have a warrant to examine private Email they have no powers to sieze it. But ISPs who refuse to hand over data when a warrant is not available, are prosecutable under the Police and Criminal Evidence Act and (arguably) under the Data Protection Act.
Nicholas Locket ,of the intellectual property, IT and Internet team at Field Fisher Waterhouse of London, told PC Week that ISPs who insist on a warrant before allowing police to search Email, could be charged with obstructing the law.
"They would also be responsible for the preservation of that data once they were made aware of the investigation. If they destroy that data or allow it to be destroyed by the owner, or if they told the owner, they may be prosecuted," he said.
Locket added that if the police were investigating possible paedophile crime, without a warrant, and the ISP refused to hand over data, the ISP's owners could be arrested. "The whole company would come under suspicion and all the data stored on the servers could be searched. If there were any paedophile data on its servers, it is open to argument that the ISP is guilty of the offence of holding paedophile material."
But David Barratt, spokesman for UUNET Pipex, said despite these warnings, his company would not hand over any data without a warrant. "It is our opinion that the police need a warrant - it is Lockett's opinion that you do not. We'd go to court."
Demon Internet's MD Cliff Stanford,agreed: "Without a warrant we would not release Email content. Despite this law, the police wouldn't arrest an ISP."
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