0

It is often a crime to possess certain kinds of data. Specific kinds and penalties vary depending on jurisdiction.

However, to "possess something, a person must have ... access to it and control over it".

Suppose a cloud storage provider P keeps encrypted data owned by its client C. Only C has the key, so P cannot actually read the data. But P knows that the data is illegal (let's just assume that the fact of knowing it is provable beyond reasonable doubt).

So, is it no defence to P that the data, despite physically residing on its premises, is not actually accessible/readable by anyone but C?

Related: Can blockchain be declared illegal?

Greendrake
  • 28,487
  • 5
  • 71
  • 135

2 Answers2

4

There is no way to answer your question in the abstract. Any answer will clearly depend on the meaning of any particular criminal prohibition.

For example, if the prohibition were: "no person may hold data, in any form, knowing that it is [illegal, or whatever characteristic you mean to ask about]," then it would be likely be that holding data with knowledge of the data's illegality makes out the offence.

Even if the prohibition were phrased using the word "possess," interpretation of that single word in isolation would be an error of statutory interpretation.

But for a specific instance, Canada's Criminal Code, s. 163.1(4) says:

Every person1 who possesses any child pornography is guilty of [an offence] ...

The Criminal Code specifically defines possession at s. 4(3). A portion of that definition includes:

For the purposes of this Act, ... a person has anything in possession when he has it in his personal possession

This has been interpreted by courts to require only: "actual physical custody of the object" and "knowledge of the nature of the object while with custody." For the Criminal Code, possession merely requires knowledge and custody.

Therefore, the offence of "possessing" child pornography does not require the ability to access that pornography. Accessing is a different offence. The "object" that is possessed is the "underlying data file," not a particular subsequent representation of it. This was explained by the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, paras. 25-28.

1. Note the definition of person in the Criminal Code includes a "body corporate, society, company, firm, partnership." But they are subject to the same mens rea requirement on the part of their directing mind. Just as for any other person, mere custody is not enough to make out this offence.

Jen
  • 87,647
  • 5
  • 181
  • 381
2

Possession is actually defined differently in different jurisdictions and different situations -- imagine someone with a locked suitcase full of drugs, but no key.

If P is aware that C has stored that kind of data, without knowing the exact content, P may be what is commonly called a bulletproof hoster. P might be guilty for a conspiracy to commit a crime with C, or not. If P was precisely aware what C is doing, that might make P an accomplice in the crime of C.

o.m.
  • 22,932
  • 3
  • 45
  • 80