Section 36 of the Cybercrime Code Act 2016 is the fastest power in Part IV, and the only one police may exercise without going to court.
Section 36(1)
Where a member of the Police Force has reasonable grounds to suspect that —
(a) data stored in an electronic system or device, or thing is required for the purpose of an investigation or proceeding; and
(b) there is a risk that the data, electronic system or device, or thing may be destroyed or rendered inaccessible,
he may, by written notice, require a person in control of the data, system, device or thing to ensure that the data specified in the notice be preserved for a period of up to 14 days.
| Feature | Position |
|---|---|
| Who issues it | A member of the Police Force — no court order required |
| Form | Written notice |
| Threshold | Reasonable grounds to suspect both (a) and (b) |
| What it requires | Preservation only — not production or disclosure |
| Duration | Up to 14 days, extendable once by 14 more |
| Non-compliance | An offence under s 36(4) |
Preservation is not production
A section 36 notice requires the recipient to keep the data. It does not require them to hand it over, to open it, or to tell police what it contains.
To obtain the data, police must apply to a court for a production order under section 35.
That is why section 36 can operate without judicial authorisation: it freezes the position, it does not invade it. The privacy intrusion occurs at the production stage, where a court is involved.
A recipient who volunteers the data in response to a preservation notice goes beyond what the notice requires — and where the data is confidential, may be exposed under section 25.
Sections 36(2) and (3) — the extension
(2) Subject to subsection (3), the Magistrate may, on application by the member of the Police Force, authorise an extension for a further 14 days from the expiry of the initial 14 days.
(3) An application under subsection (2) shall be made at any time within the initial 14 days.
The extension is judicial. Police issue the original notice themselves; only a Magistrate can extend it.
The application must be made within the first 14 days. Subsection (3) is mandatory — “shall”. An application made on day 15 is out of time, and the section provides no power to cure it.
The extension runs from expiry, not from the date of the order. So the maximum total preservation period under section 36 is 28 days.
There is no provision for a second extension. Beyond 28 days, police must have obtained a production order under section 35 or a restraining order under section 38.
Why the power exists
Message logs rotate. Servers overwrite. Cloud accounts are deleted. A person who suspects an investigation deletes the material. Traffic data may be retained for days, not months.
Preservation notices exist because a court application takes time the evidence does not have. The 14-day window is intended to be exactly as long as it takes to prepare and hear a production application.
The corresponding limit is that the period is short and the number of extensions is one. Section 36 cannot be used to keep data frozen indefinitely while an investigation drifts.
If you receive a preservation notice
- Check it is in writing. Section 36(1) requires a written notice.
- Check what data is specified. The obligation extends to “the data specified in the notice” — no more.
- Suspend routine deletion for that data. Automated rotation and retention policies must be stopped for the specified material.
- Preserve, do not produce. Wait for a section 35 order.
- Note the expiry date. The obligation lasts up to 14 days unless extended by a Magistrate.
- Comply. Failure is an offence — 12 months or K10,000 for an individual, K100,000 for a body corporate.
For victims, asking police to issue a preservation notice early is often the single most useful step. See what to do if you are a victim of cybercrime.
Sources
- Cybercrime Code Act 2016 — ss 2, 25, 35, 36, 37, 38, 44, 45
- Constitution — s 49
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.