Part 2: Prevention, investigation and prosecution of crime Chapter 3: Extraction of information from electronic devices Section 37: Extraction of information from electronic devices: investigations of crime etc.
Subsection (1) provides that an authorised person can extract information stored on an "electronic device" if three conditions are met. First, that the device has been provided voluntarily by a user of the device, and, second, that that user has given their agreement for information stored on the device to be extracted, third that an authorised person must reasonably believe that information stored on an electronic device is relevant to a reasonable line of enquiry.
	Subsection (2) sets out the purposes for which the power in subsection (1) can be used, namely the prevention, detection, investigation or prosecution of crime; helping to locate a missing person; or protecting a child or at-risk adult (as defined in subsection (4)) from neglect or harm. So far as the first of these purposes goes, an example is where a victim of a crime has kept texts on their mobile phone which may have a bearing on the investigation of the offence. If the victim voluntarily provides their mobile phone to the police and gives their agreement for the extraction of information from the phone, the police can use this power to review the text messages during the criminal investigation (provided the other provisions of section 37 are adhered to).
	Subsection (3) makes clear that ‘crime’ means conduct which amounts to a criminal offence in a part of the UK or conduct which, had it taken place in a part of the UK, would have amounted to an offence there. This allows the power to be exercised further to the receipt of mutual legal assistance requests from overseas (provided the conduct in question would have constituted an offence in the UK, had it taken place here).
	Subsection (5) sets out conditions which must be satisfied for an authorised person to extract information from an electronic device under subsection (1). Subsection (5)(a) describes that if exercising the powers for the purpose of the prevention, detection, investigation, or prosecution of a crime the authorised person must reasonably believe that information on the device is relevant to a reasonable line of enquiry. Subsection (5)(b) applies where an authorised person is exercising the powers for the purpose of helping to locate a missing person or protecting a child or at-risk adult from neglect or harm and specifies that the powers may only be exercised if the authorised person reasonably believes that information stored on the device will be relevant to that purpose. Subsection (5)(c) confirms that in all cases where an authorised person seeks to use these powers they must also be satisfied that extraction of that information is necessary and proportionate to achieve the purpose.
	Subsection (7) applies where the authorised person thinks there is a risk of obtaining information in excess of that which is required for the purposes of subsection (2) or section 41(2). In such a case, in order to be satisfied that extraction is proportionate, the authorised person must be satisfied that there are no other ways of obtaining the required information which avoid that risk or, if there are, that it is not reasonably practicable to rely on them. This means that, for example, a police constable should not use this power to extract video evidence from a witness’s digital device if there is a risk of extracting other information and it is possible and practical to obtain the same video evidence another way which doesn’t carry that risk. There may be instances where the information required exists elsewhere, such as in CCTV, but it is not reasonably practicable to obtain it, as doing so would take an excessive amount of time. The authorised person must demonstrate that these issues and alternatives for obtaining the information have been considered before undertaking the extraction activity.
	Subsection (8) is intended to ensure that authorised persons have due regard for confidential information (that is, legally privileged information, journalistic material and other protected material, as defined in Section 43) in the course of exercising these powers. Confidential information includes categories of information that carry inherent sensitivity and so are subject to certain protections. These include information subject to legal privilege, journalistic material, certain personal records such as medical documents and material acquired as part of a trade deal.
	Subsection (9), similar to (7), sets out that before exercising the power, where they consider there is a risk of obtaining confidential information in the exercise of the powers, the authorised person must be satisfied that the use of the power remains proportionate. That is, that there are no other means of obtaining the information sought, and if there are, it is not reasonably practicable to use them. In addition, however, in order to be satisfied that the use of the power is proportionate, the authorised person must, under subsection (10), have regard to the potential amount of confidential information likely to be held on the device, and also its potential relevance to purpose within section 37(2), or 41(2) (i.e. the purposes with regard to which the power can be exercised – the prevention, detection, investigation or prosecution crime; to help locate a missing person or to protect a child or at-risk adult). Authorised persons will need to make this separate assessment with regard to confidential information in cases involving devices owned by individuals who have since died, as well as devices owned or used by individuals without capacity.
	Subsection (11) requires authorised persons to have regard to the code of practice issued by the Secretary of State under section 41 when exercising, and when considering whether to exercise, the power in subsection (1).
	Subsection (12) provides that the power conferred by subsection (1) is without prejudice to other statutory or common law powers to extract information or to seize any item or information – for example, the general powers of seizure conferred by section 19 of PACE, exercisable where a constable is lawfully on any premises (this provision allows the constable to seize anything on the premises if the constable has reasonable grounds for believing it is evidence relating to an offence and it is necessary to seize it in order to prevent the evidence being concealed etc).
	Subsection (13) defines various terms used in this Chapter, including:
"adult" is a person aged 18 or over
"authorised person", which means a police constable or other law enforcement agency/officer listed in Schedule 3;
"information", which includes photographs and video or sound recordings;
"electronic device", which means any device, such as a mobile phone, on which information is capable of being stored electronically (and includes a component part of such a device);
"user", which means an individual who ordinarily uses a device (who may not necessarily be the owner of the device or the person in whose name a contract with a telecommunications service provider is held). Typically, for the purposes of this power, the user will be the victim or witness of a crime which is being investigated by the police or other authorised person.