Mobile phones are often a flash point in dawn raids.
Competition dawn raid inspectors are usually very keen to get access to the mobile phones of those people on the premises being dawn raided.
This is usually for three reasons:
phones usually contain a treasure trove of messages, texts, emails and social media communications. Business people are often more casual in communications on their mobile phones than they would be in traditional communications (e.g. letters) and these casual mobile exchanges can give a real insight into what might have happened. Mobile phones can therefore provide critical evidence that would be other difficult to find
phones can often provide location information on where individuals were at various times
the competition agencies can usually interrogate the phones to identify who else with whom the holder of the phone was in contact
What if the competition agency seeks access to an employee's own personal mobile phone which the employee has at work? May the Irish Competition and Consumer Protection Commission (CCPC) or the European Commission's Directorate General for Competition (DG COMP) insist on getting access to personal property which is located on the premises? The answer is usually yes. The Irish District Court warrant issued to the CCPC or the European Commission Decision issued to DG COMP entitles the authorised officers to search property on the premises named in the warrant or decision. There are some exceptions to what may be searched (e.g., legally privileged documents) but the general principle is that whatever is located on the premises (even personal mobile phones) may be searched and interrogated and this includes mobile phones.
What if the mobile phone owner has a concern that there was private information on the mobile phone? What if the holder wants to make a private claim? It is important to get advice on the specific circumstances. For example, Ireland's CCPC has a "Protocol for dealing with claims of privacy rights in connection with unannounced searches conducted on foot of a search warrant under section 36 or section 37 of the Competition and Consumer Protection Act 2014". The Protocol states, for example,
"where CCPC authorised officers seized an entire electronic device during the search operation (e.g. a mobile phone, laptop, tablet etc.), the device will be brought back to the CCPC’s offices, where the [Digital Investigations Unit] Officer will make a forensic copy of the device. After this has been done, the CCPC will then return the device to the Search Target and, at the same time, will inform the Search Target in writing that it has 14 calendar days to notify the CCPC as to whether it wishes to make a privacy claim in respect of any items stored on the device. From the date of receipt of the device, the Search Target will have 14 calendar days within which to write to the CCPC’s Director of Legal Services identifying the specific items on the device in respect of which it wishes to make a claim of privacy".
What are the practical tips to anyone whose mobile phone is about to be seized by competition agencies?
Three pieces of advice are often useful:
seek legal advice
follow the legal advice and co-operate with the agencies
before the phone is taken from you, with the permission of the agency's officials, write down any key numbers, diary appointments or emails that are stored on the phone and needed (e.g. phone numbers for child minders) because it might be some time before the phone is returned to its owner