Malay Mail: Can the police ask for our passwords? What if we forget them? Experts weigh in after Patrick Teoh’s Facebook insult case.

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Sunday, 17 May 2020 10:03 AM MYT

BY EMMANUEL SANTA MARIA CHIN AND IDA LIM

KUALA LUMPUR, May 17 — Veteran radio personality Patrick Teoh’s recent arrest over an alleged Facebook insult against the Johor royalty has cast the spotlight on police’s powers to demand for passwords and go through the suspect’s electronic gadgets for information.

With the crux of the police’s investigation banking on data retrieved from Teoh’s electronic gadgets, matters were later compounded when the police accused Teoh of claiming to have forgotten his email password, which they cited as one of the reasons for detaining him for more days under police remand to complete their investigation.

Which brings us to some burning questions about what Malaysians should know about their email and social media accounts: Can the police sift through our gadgets for information? What happens if we can’t recall the passcodes to our online accounts during police investigations? 

Here’s what legal and tech experts told Malay Mail about the police’s powers and technological capabilities when it comes to data privacy. 

Can the police search my phone and ask for my passwords?

In short, the simple answer is, yes, and, yes.

Based on Parliament’s Hansard in May and July 2012, the government had at that time noted that the police’s powers to access computerised data during investigations were only in specific laws such as the Communications and Multimedia Act, and that Section 116B would be required to enable the police to have such access for any offences not covered by those specific laws in order to plug the legal loopholes in combating cybercrimes.

Specifically on passwords, lawyer Foong Cheng Leong confirmed that authorities can request for passwords as part of investigations to allow for digital forensic tests to be conducted on the device, in order to obtain sufficient evidence to prove their case in court. 

“It is generally to determine whether a particular message or conduct originated from that device.

While the term “computerised data” in both the CPC’s Section 116B and the CMA’s Section 249 is not defined, Foong confirmed that this would apply to passwords to social media accounts, email accounts, log-in passwords for computers, and codes to unlock a smartphone’s screen.

What happens if I refuse to reveal my passwords? 

Criminal lawyer Rajsurian Pillai said that the police may view a suspect’s refusal to review passwords during investigations as a refusal to cooperate, and that this could then expose a person to potential further action by the authorities.

But Rajsurian highlighted that both Section 256(2) of the CMA and Section 112(2) compels a person to answer all questions related to a case during investigations, but at the same time allows the individual to refuse to answer any questions if the answer would have a tendency to expose him to a criminal charge or penalty.

“Simply put, the person in question need not answer a question of which the answer could incriminate him. 

While the term “computerised data” in both the CPC’s Section 116B and the CMA’s Section 249 is not defined, Foong confirmed that this would apply to passwords to social media accounts, email accounts, log-in passwords for computers, and codes to unlock a smartphone’s screen.

What happens if I refuse to reveal my passwords? 

Criminal lawyer Rajsurian Pillai said that the police may view a suspect’s refusal to review passwords during investigations as a refusal to cooperate, and that this could then expose a person to potential further action by the authorities.

But Rajsurian highlighted that both Section 256(2) of the CMA and Section 112(2) compels a person to answer all questions related to a case during investigations, but at the same time allows the individual to refuse to answer any questions if the answer would have a tendency to expose him to a criminal charge or penalty.

“Simply put, the person in question need not answer a question of which the answer could incriminate him. 

What if I forget my passwords?

When asked if any legal action can be taken on someone for forgetting their passwords, Rajsurian simply replied: “No.”

Foong said it is a reasonable scenario for anyone to have forgotten their passwords to online accounts as passwords could be saved by the internet browser on a device, adding that authorities could in such cases still access the online account if they have access to the computer which were used to access the account.

“This is because that person’s computer generally would have saved the password unless that person has set it to do otherwise,” he said.

Can investigators still trace data after you delete your Facebook or social media post?

Even if a post was made on social media using the device but was later deleted, as in the case of 73-year-old Teoh who is said to have deleted his Facebook post hours after allegedly uploading it, Fong said data showing traces of the alleged offence being committed can still be retrieved from the gadget. 

He said, however, this applies only if the memory on the computer or device was not wiped out or had its contents deleted by the owner.

https://www.malaymail.com/news/malaysia/2020/05/17/can-the-police-ask-for-our-passwords-what-if-we-forget-them-experts-weigh-i/1866881

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1 Response to Malay Mail: Can the police ask for our passwords? What if we forget them? Experts weigh in after Patrick Teoh’s Facebook insult case.

  1. Edward Lye says:

    What provisions are there to protect the rakyat against the police or other authorities from PLANTING stuff like kiddie porn? I think the authorities do not require the passwords as they already have hacking tools.

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