Due to the complexity of white collar crime nowadays, the public prosecutor requires a lot of information in order to understand and prosecute the case. In many cases the prosecutor orders the investigative measure of a house search to enable the preservation of necessary information.
According to Article 119 para 1 Austrian Criminal Procedure Code ("ACPC") the order of a house search is inter alia admissible if, due to certain facts, it can be assumed that objects that have to be secured or evaluated are located at the premises. Apart from the prosecutor issuing the order for a house search – which has to be granted by the court – the prosecutor has to issue an order to preserve the objects he or she aims to secure.
In general a preservation order according to Article 109 para 1a ACPC covers the preliminary control over an object for reasons of evidence, preservation of private claims or pecuniary measures (Article 110 para 1 ACPC). As documents are mostly stored electronically (on laptops, mobile phones, USB sticks etc.), Article 111 para 2 ACPC states that following a preservation order any person is obliged to provide access to information that is stored on a data storage medium. The preservation order generally allows the prosecutor to secure the storage medium itself as the object – including of course the information stored on it. The question is whether the preservation order covers access to information that is stored on a server or cloud storage network by using encrypting software or the login data accessible on the preserved storage unit.
The legislative materials to Article 111 ACPC explicitly state that information stored on a server or a cloud network can be subject to a preservation order.
However, it has to be noted that the preservation according to Article 109 et seqq ACPC is not a secret investigative measure. Therefore the preservation of outsourced data is only admissible if the person authorized to access the data is informed and is given the chance to hand over a copy of the relevant information upfront (Article 111 para 2 ACPC). Furthermore the access for the prosecutor is only permissible once; considering that preservation is not a constant surveillance investigative measure.