Searches of corporate computer systems during anti-trust investigations
can create serious problems for the companies involved. These include how to
protect legally privileged information or documents belonging to other parties,
avoiding the loss or destruction of data, allocating liability for damages,
and minimizing disruption of business during searches.
These and other business concerns are addressed in the ICC Recommended
Code of Practice for Competition Authorities on Searches and Subpoenas of Computer
Records. An introduction to the new code points out that there is currently
no well-developed body of case law to provide guidance on these issues.
Competition authorities are employing ever more sophisticated
and flexible computer search law enforcement tools in response to the challenges
posed by an increased use of information technology by business.
"Given the volume of computer records generated by most
businesses, there is an urgent need to ensure that enforcement practices and
policies reflect a clear understanding of how computers work, how businesses
use them, and the extent to which traditional approaches to the collection of
computer records may unnecessarily impose significant costs on business,"
the document states.
The ICC code deals not only with the
procedures which should
be followed during a computer search, but also provide competition authorities
with recommendations concerning the initial decision of whether or not to request
or issue a search warrant or subpoena. For example, authorities are urged to
ascertain whether a computer search would provide new evidence or merely additional
copies of documents already available in paper form.
The European Commission, which both issues and executes search
warrants, has responded to what it described as a "thought-provoking contribution"
by saying it will give it careful consideration.
Full
text of the Code of Practice