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November 11, 2019

ICO Seeks Proceeds of Crime Powers to Tackle Criminal Misuse of Data

"The only sanction available to the courts following a criminal conviction is a fine, which in some cases will be much less than the financial gains made by the offender"

By CBR Staff Writer

The Information Commissioner’s Office (ICO) is seeking greater legal and investigative powers to carry out search and seizure warrants, including the ability to confiscate assets in order to tackle criminal misuse of data.

In a consultation launched earlier this month, the UK’s data regulator is seeking public views on its request for extended legal powers.

Comments need to be in by December 6, the watchdog said late Friday.

Why the Consultation?

The ICO is at the front line of the changing nature of criminal activity and the use of personal data to enrich bad actors.

Currently the General Data Protection Regulation (GPDR) lets the agency inflict financial penalties on entities that are responsible for civil breaches of the law, but it has limited powers when it comes to investigating criminal offences.

The ICO notes: “The only sanction available to the courts following a criminal conviction is a fine, which in some cases will be much less than the financial gains made by the offender.

“This will inevitably lead to a greater disparity between the deterrent and punitive effects of sanctions imposed in relation to civil breaches and criminal offences.”

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Proceeds of Crime Act

As a result the ICO is asking for its office to be granted access to the investigation powers that are laid out in the UK’s Proceeds of Crime Act 2002 (POCA).

POCA powers are currently used by UK Accredited Financial Investigators (AFI) who are trained and accredited by the National Crime Agency. AFI’s are staff members of public bodies who have the ability to apply for restraint orders and seize cash or assets thought to be associated with criminal activities.

The ICO is proposing that an AFI officer should be based in the agency’s Investigation Department.

ICO Seeks Proceeds of Crime Powers

The ICO is seriously concerned that if it is not granted financial investigation and associated POCA powers then “an ever-increasing number of offenders will be able to retain what can amount to significant criminal proceeds.

“In some cases these gains can illegally fund lavish lifestyles.”

The ICO is requesting that it be granted the following powers under the Proceeds of Crime Act 2002

  • To apply to the court for Restraint Orders
  • To apply to the court for Confiscation Orders
  • Cash seizure, detention and forfeiture from premises
  • Asset seizure and forfeiture from premises
  • To undertake investigations (including search and seizure warrants) to support the proceedings sought above.

The date protection agency is also seeking: “Access to information relevant to the investigation of money laundering offences is being sought to enable the ICO to respond to the changing nature of criminal activity involving the misuse of personal data, and to engage with other law enforcement agencies more effectively in cases which may involve offences of money laundering.”

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