On 15 July 2022, the Department of Police called for public comment on the Draft Standard Operating Procedure for the Investigation, Search, Access or Seizure of articles in line with section 26 of the Cybercrime Act No 19 of 2020. The guidelines are aimed at members of the South African Police Force and provide new draft rules on how to manage forms of physical evidence that carry digital information. This constitutes the first phase of the public consultation period.
The Cybercrimes Act was signed into law in 2021 and partially came into force on 1 December 2021. It creates new cybercrimes offences, including, for example, the unlawful interception of data and the distribution of data messages of an intimate image of a person, and also provides for the handling and preservation of digital evidence. It requires, in section 26, law enforcement authorities to issue Standard Operating Procedures (SOPs) within 12 months of the commencement date, leading to the present call for comment.
The SOPs deal with the jurisdiction and international dimension of cybercrime and provide general guidelines for the investigation, search, access or seizure of an article holding digital evidence. With regard to the latter, it details five principles to be taken into consideration for handling digital evidence: maintaining data integrity, creating an audit trail, obtaining specialist support where necessary, providing appropriate training, and respecting the principle of legality.
The SOPs also set out guidelines for the packaging, transportation, and storage of articles, requiring special precautions for the handling of devices that contain electronic evidence, and mandating that investigators take special care to restrict access to sensitive evidence, including “pornographic images of children”, to prevent secondary victimisation of victims and other persons or detriment to state security. Sections 4.7 and 4.8 provide guidelines on the search for, access, or seizure of an article involved in the commission of an offence either with or without a warrant. Section 8 deals with accessing data with the cooperation of third parties such as a hosting provider.
Comments can be submitted by no later than Monday, 15 August 2022, and must include the name, postal, e-mail address and telephone number of the person or organisation submitting the comments. They may be submitted:
- By email to Captain Marlize Jooste at [email protected],
- By post to:
The National Commissioner, for attention of Maj Gen L Magson at:
South African Police Service
Private Bag x 302
- Or hand delivered to:
The South African Police Service,
Wachthuis Building, Polley’s Arcade
231 Francis Baard Street
Enquiries can be directed to Captain Marlize Jooste on (012) 393 1186.
The Standard Operating Procedure can be accessed here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected]