Cybercrime And Computer Related Crimes - Procedural Powers (Ss 20-28)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1321

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[Ch0806s20]20. Preservation order

(1) A

police officer or any person authorised by the Commissioner or by the Director,

in writing, may, by written notice, order for the preservation of data that has

been stored or processed by means of a computer or computer system or any other

information and communication technology, where there are reasonable grounds to

believe that such data is vulnerable to loss or modification.

(2)

For the purposes of subsection (1), data includes traffic data and subscriber

information.

[Ch0806s21]21. Disclosure of preserved data

A

police officer or any person authorised by the Commissioner or by the Director,

in writing, may, by written notice given to a person in control of a computer

or computer system, require the person to-

(a) ensure that the data specified in the

notice is preserved for the period specified in the notice; or

(b) disclose sufficient traffic data about a

specified communication to identify the service provider or the path through

which the data was transmitted.

[Ch0806s22]22. Production order

(1) A

police officer or any person authorised by the Commissioner or by the Director,

in writing, may apply to a judicial officer for an order compelling-

(a) a person to submit specified data in that

person’s possession or control, which is stored in a computer or computer

system; and

(b) a service provider to submit subscriber

information in relation to its services in that service provider’s possession

or control.

(2)

Where the data in subsection (1) consists of data stored in an electronic,

magnetic or optical form on a device, the request shall be deemed to require

the person to produce or give access to it in a form in which it can be taken

away and in which it is visible and legible.

[Ch0806s23]23. Access, search and seizure

(1)

Where a police officer, or any person authorised by the Commissioner or by the

Director, in writing, has reasonable grounds to believe that stored data or

information would be relevant for the purposes of an investigation or the

prosecution of an offence, he or she may apply to a judicial officer for the

issue of an order to enter any premises to access, search and seize such data

or information.

(2) A

police officer or any person authorised by the Commissioner or by the Director,

in writing, in the execution of an order issued under subsection (1), shall-

(a) seize or secure a computer or computer

system or any information and communication technology medium;

(b) make and retain a copy of such data or

information;

(c) maintain the integrity of the relevant

stored data or information;

(d) print, photograph, copy or make in any

other manner for the purpose of doing an act referred to in paragraph (a);

and

(e) render inaccessible or remove the stored

data or information from the computer or computer system, or any information

and communication technology medium.

[Ch0806s24]24. Real time collection of traffic data

A

police officer or any person authorised by the Commissioner or by the Director,

in writing, may apply to a judicial officer, ex parte, for an order-

(a) for the collection or recording of traffic

data, in real time, associated with specified communications transmitted by

means of any computer or computer system; or

(b) compelling a service provider, within its

technical capabilities, to-

(i) effect such collection and recording

referred to in subparagraph (a); or

(ii) assist the Police, to effect such

collection and recording.

[Ch0806s25]25. Deletion order

The

Director of Public Prosecutions, or any person authorised by him or her, may

apply to a judicial officer for an order that data in a computer or computer

system or other information communication technology medium which contains

pornography, obscene material or child pornography-

(a) be no longer stored on and made available

through the computer or computer system or any other medium; or

(b) be deleted or destroyed.

[Ch0806s26]26. Acting without an order

A

police officer of the rank of sergeant or above such rank may act without

applying for an order under this Act if such application would result in an

undue delay in the investigation of any offence under this Act.

[Ch0806s27]27. Limited use of disclosed data and

information

(1)

Data obtained under this Act by a police officer, or any person authorised by

the Commissioner or by the Director, in writing, shall be used for the purpose

for which the data was originally sought, unless such data is sought-

(a) in accordance with any other enactment;

(b) in compliance with an order of court;

(c) in the prevention of injury or other damage

to the health of a person or serious loss of or damage to property; or

(d) in the public interest.

(2)

Subject to subsection (3), on request, a police officer or any person

authorised by the Commissioner or by the Director, in writing, shall permit a

person who had the custody or control of a computer or computer system to

access and copy computer data on the computer or computer system.

(3) A

police officer or any person authorised by the Commissioner or by the Director,

in writing, may refuse to give access to computer data or provide copies of

such computer data if he or she has reasonable grounds for believing that

giving access, or providing the copies-

(a) would constitute a criminal offence; or

(b) would prejudice-

(i) the investigation in connection with

which the search was carried out; or

(ii) another ongoing investigation; or

(iii) any criminal proceedings that are pending

or that may be brought in relation to any of those investigations.

[Ch0806s28]28. Non-compliance with order or notice

A

person who fails to comply with an order or notice issued under this Part

commits an offence and shall on conviction be liable to a fine not exceeding

P20,000 or to imprisonment for a term not exceeding one year, or to both.