PROTECTING THE PRIVACY OF DATA: SEARCH AND SEIZURE OF COMPUTER DEVICES UNDER THE CYBERCRIME (PROHIBITION, PREVENTION, ETC) ACT 2015

Abstract

Certain far-reaching powers are sine qua non in facilitating the proper policing of the society. One of such powers is the Police investigative powers of search and seizure. This paper examines how the Nigeria Police have used this power of search and seizure, especially, as allowed under the Cybercrime (Prohibition, Prevention, Etc.) Ac 2015. It answers the question of the propriety of the search and seizure of computer devices in this age of the internet, as well as, the constitutionality thereof, in the light of the provisions of the Cybercrime (Prohibition, Prevention, Etc.) Act 2015. In investigating this paper, such, analytical tools as, meta-analytical style doctrinal comparisons, overt and covert interviews, including resort to both primary and secondary sources of law, were deployed. This paper recognizes that the search and seizure powers are not only crassly abused by the members of the law enforcement community in Nigeria; rather, that computer devices contain so much information in this era, that their data is protected by the constitutional right to privacy. A law enforcement agent only needs to place a person under arrest to enjoy virtually unbridled powers of search, and even the seizure of such computer devices with their critical private data. It concludes that in the present internet age, a computer device-borne personal data is too sensitive to be treated as a mere chattel found on the arrestee. Further, it is the conclusion of the paper that the data contained in a computer device is constitutionally protected under privacy rights; hence, evidence procured in breach thereof, cannot be rendered admissible under Nigerian statutory exception for ‘illegally obtained’ evidence: it would be ‘unconstitutionally obtained’ evidence. It thus recommends that the decision on whether to search a person, be vested on the team leaders and or senior police officers (SPO’s), and their equivalent in rank, while a computer device itself must not be searched and its content accessed without a warrant. Also recommended is that the computer-borne data cannot be admitted in evidence, if it is obtained either warrantless, or outside the exceptional circumstances accommodated in the constitution itself.