We have blogged about the rise in Big Data issues in the past (for example for Computer Weekly here) and some comments by the Director of the UK’s Serious Fraud Office (SFO) on Friday perhaps confirm that the use of Big Data is on the mind of prosecutors as well.
In August 2016 we wrote about the SFO’s Annual Report and the replacement of the SFO’s current eDiscovery platform with a new system to help the SFO sweat data to investigate and prosecute cases. You can find our original alert here. On Friday at the Business Integrity and Compliance 2016 conference I asked the Director of the SFO, David Green CB QC more about this. Mr Green confirmed that he had recently signed the contract for this system and confirmed that the SFO were planning to use it to increase their investigatory capability.
From next year the SFO will have wider powers to collect data as one of the agencies which will receive new powers under the Investigatory Powers Act 2016. We talked about these wide powers in our alert at the end of last month here. In addition Mr Green said that he was working with the National Crime Agency (NCA) to look at ways of sweating the data from Suspicious Activity Reports filed with the NCA. Suspicious Activity Reports are pieces of information which alert law enforcement to possible issues with client or customer activity and were introduced by the UK money laundering legislation, the Proceeds of Crime Act 2002. Lots of Suspicious Activity Reports are filed with the NCA – from October 2014 to September 2015 for example the NCA received 381,882 reports – an increase of 7.82% on the previous year. More than 80% of these reports came from banks. Clearly there is a lot of data there.
In addition Mr Green said that the SFO already holds 2 petabytes of data collected in connection with earlier enquiries. It is often hard to visualize what a petabyte looks like but as an indication 2 petabytes is around about 8 times the volume of data the US Library of Congress had collected from its foundation in 1800 up until April 2011. The Investigatory Powers Act 2016 gives the SFO the ability to add significantly more data continuing the practice we talked about in our comment on the Graham Marchment prosecution in May 2015 of using a wide array of investigatory techniques including emails, phone logs and travel records. Our alert on the Marchment prosecution is here.
Mr Green also spoke on Friday about an innovative scheme that the SFO is putting in place to recruit those with a technology background. He said that the SFO was working with a leading university to recruit students with a cyber forensic background. Those students would come and work with the SFO as part of their degree course then hopefully return to the SFO once their studies had ended to continue their work.
It is clear from Friday’s conversation that the SFO are alive to the possibilities of using technology to do more without increasing their budget. An efficient use of technology would allow regulators and prosecutors to target their enquiries and to collect more evidence before approaching the target company. The new powers they will have from 2017, coupled with an enhanced technology capability, make prosecutions based on careless communications and bad behaviour more likely.
Jonathan Armstrong is a lawyer with Cordery in London where his focus is on compliance issues.
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