Presentation on theme: "International Telecommunication Union ITU – EC HIPSSA Project Support for Harmonization of the ICT Policies in Sub-Sahara Africa, Sadc Harmoniseed Legal."— Presentation transcript:
International Telecommunication Union ITU – EC HIPSSA Project Support for Harmonization of the ICT Policies in Sub-Sahara Africa, Sadc Harmoniseed Legal Cyber Security Framework For Southern Africa 2 nd Stakeholders Workshop onTransposition of SADC Cyber Security Model Laws into national Law of Swaziland, Mbabane, Swaziland, August, 2013 Overview of Draft Swaziland Computer Crime and Cybercrime Bill Presenter: Judith M.C.Tembo ITU HIPSSA International Expert on cybercrime
Draft Computer Crime and Cybercrime Bill Swaziland A. Objectives Act provides a legal framework for the criminalisation of computer and network related offences. Principal aims are to criminalize certain illegal content in line with regional and international best practices, provide the necessary specific procedural instruments for the investigation of such offences and define the liability of service providers. B. Provisions Draft Bill divided into six parts – Other than provisions on child pornography, all provisions of Model law on cybercrime transposed and expanded as appropriate to suit Swaziland situation; Terms used and provisions other than those peculiar to Swaziland law defined; Proposed Bill, drafted using technology neutral language. 2
Draft Computer Crime and Cybercrime Bill Swaziland Bill avoids over legislating and facilitates both technological advancements and new and innovative developments in cybercrime. Part 1 - provides definitions and sets objective of Act, scope/application and date when Act will come into force; defines terms such as computer system, access provider and hinder etc., using sufficiently broad wording and where possible illustrative examples. 3
Draft Computer Crime and Cybercrime Bill Swaziland Part I Contd -As far as possible, technical terms been defined to provide certainty as to which terminologys been left to judicial construction Part II - provides Substantive criminal law provisions (offences) -purpose of Sections 4 23 of the Act is to improve means to prevent and address computer and network related crime by defining a common minimum standard of relevant offences based on best practice prevailing within the region as well as international standards. (eg CoECC, C/wealth Model Law) - Ss.4 23 therefore provide minimum standards and therefore allows for more extensive criminalisation should country so desire. 4
Draft Computer Crime and Cybercrime Bill Swaziland Part II Contd all offences established in Act require that offender is carrying out offences intentionally. Reckless acts are therefore not covered. person who intentionally, without lawful excuse or justification or in excess of a lawful excuse or justification... - eg Section 4 requires that the offender is carrying out the offences intentionally. Reckless acts are not covered. 5
Draft Computer Crime and Cybercrime Bill Swaziland Part II Contd provisions criminalise certain conduct - eg illegally accessing, remaining logged into a computer system without lawful excuse or justification, obstructing, interrupting or interfering with the lawful use of computer data and disclosing details of a cybercrime investigation none of these acts are currently legislated against by existing legislation in Swaziland. 6
Draft Computer Crime and Cybercrime Bill Swaziland Part III provides procedures to determine jurisdiction over criminal offences enumerated in Sections 4 23 Jurisdiction – territorial/nationality (ship/aircraft registered in enacting country, citizen etc) S.24 - Territorial jurisdiction applicable if - both person attacking computer system and victim system are located within same territory or country. - computer system attacked is within its territory, even if attacker is not. 7
Draft Computer Crime and Cybercrime Bill Swaziland - S24(1)(d) – applies if a national commits an offence abroad, and conduct is also an offence under law of state in which it was committed Part IV. Procedural law – Provides a set of procedural instruments necessary to investigate Cybercrime; identification of offenders, protection of integrity of computer data during an investigation contains several inherently unique challenges for law enforcement authorities. 8
Draft Computer Crime and Cybercrime Bill Swaziland purpose of Part IV - to improve national procedural instruments by defining common minimum standards based on best practices within the region and international standards. - definition of standards will help national lawmakers to discover possible gaps in domestic procedural law. Ss only define minimum standards - therefore do not preclude creation of more extensive criminalization at national level. introduces new investigation instruments (eg. S. 33) and also aims to adapt traditional procedural measures (eg S.26). All instruments aim at permitting obtaining and/or collecting of data for purpose of conducting specific criminal investigations or proceedings. instruments described in Part IV to be used in both traditional computer crime investigation and in any investigation that involves computer data and computer systems. 6. 9
Draft Computer Crime and Cybercrime Bill Swaziland Part V Liability (Service Providers) defines limitations of liability of Internet service providers. responsibility of certain Internet service providers are limited in Act, if their ability to prevent users from committing crimes is limited - was therefore necessary to differentiate between the different types of providers Without clear regulation, uncertainty created as to whether there is an obligation to monitor activities and, whether providers could be prosecuted based on a violation of the obligation to monitor users activities. 10
Draft Computer Crime and Cybercrime Bill Swaziland Part V Contd Limitation (Service Providers) apart from possible conflicts with data protection regulations and secrecy of telecommunication, such obligation would especially cause difficulties for hosting providers that store significant number of websites. To avoid these conflicts S. 34 excludes general obligation to monitor transmitted or stored information. limits liability of providers to criminal liability. 11
Draft Computer Crime and Cybercrime Bill Swaziland Part VI General Provisions – administration of Act - includes issuance of Regulations – eg interception of computer data (security, functional and technical requirements for interception, etc), - critical information infrastructure (identification, securing integrity and authenticity of, registration and other procedures relating to critical information infrastructure, etc) 12
Draft Computer Crime and Cybercrime Bill Swaziland Detailed Provisions PART I.Preliminary Short Title & Commencement Interpretation 13
Draft Computer Crime and Cybercrime Bill Swaziland PART II.Offences 3.Illegal Access 4.Illegal Remaining 5.Illegal Interception 6.Illegal Data Interference 7.Data Espionage 8.Illegal System Interference 9.Illegal Devices 10.Computer-related Forgery 11.Computer-related Fraud 14
Draft Computer Crime and Cybercrime Bill Swaziland 12.Child Pornography 13.Pornography 14.Identity-related crimes 15.Racist and Xenophobic Material 16.Racist and Xenophobic Motivated Insult 17.Denial of Genocide and Crimes Again Humanity 18.SPAM 19.Disclosure of details of an investigation 20.Failure to permit assistance 21.Harassment utilizing means of electronic communication 15
Draft Computer Crime and Cybercrime Bill Swaziland 22. Violation of Intellectual property rights 23. Attempt, abetment and Conspiracy PART III.JURISDICTION 24.Jurisdiction 25. Extradition 16
Draft Computer Crime and Cybercrime Bill Swaziland PART IV.PROCEDURAL LAW 26.Search and Seizure 27.Assistance 28.Production Order 29.Expedited preservation 30.Partial Disclosure of traffic data 31.Collection of traffic data 32.Interception of content data 33.Forensic Tool 17
Draft Computer Crime and Cybercrime Bill Swaziland PART V.LIABILITY 34.No Monitoring Obligation 35.Access Provider 36.Hosting Provider 37.Caching Provider 38.Hyperlinks Provider 39.Search Engine Provider 18
Draft Computer Crime and Cybercrime Bill Swaziland PART VI GENERAL PROVISIONS 40. Limitation of Liability 41. Forfeiture of Assets 42. General Provision on Cybercrimes 43. Regulations 44.Offence by body corporate or un-incorporate 19
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS Case demonstrations on interpretation of cybercrime laws Hopewell Nyamakazi v DPP Kwazulu Natal Case No.: AR215/08 – (review SA HC) Appeal against conviction and sentence of 7years for fraud in respect of offences against Electronic Communications and Transactions Act 2002 (S.86(4) A/R Ss.1, 85 and 89(2) Electronic Communications and Transactions (ECT) Act 25 of 2002 and counts 18 to 34 Conviction based on plea of guilty tendered in Magistrates court. Contested on ground that applicant did not understand charges and element of intent not proved by prosecution.
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS while acting with other persons he unlawfully and intentionally [utilized] a device or computer programme in order to unlawfully overcome security measures designed to protect data or access to data, to wit an electronic card reader commonly known as a Skimming Device, in order to gain unauthorized access to account information encoded on the magnetic strips as set on column 3 of schedule A of the charge sheet. purpose for use of the computer device or skimming device was to duplicate cards both debit and credit for his use.
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS that during the period August to September 2006 in Durban he duplicated the cards with the skimming device as charged, and committed the crime of fraud in concert with others by having performed the transactions set out as charged admitted actions were designed for the purpose of self enrichment of myself and those with whom I acted in concert pleaded guilty to having contravened relevant provisions of the ECT Act.
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS In dismissing the appeal court stated that Applicant had pleaded facts to demonstrate that he was in fact guilty of contravening the relevant provisions. Paragraph 2.3 of the statement reads as follows: I admit that whilst acting in common purpose with other persons, I did unlawfully and intentionally utilise a devise or computer programme in order to unlawfully overcome security measures designed to protect data or access to data, to wit an electronic card reader, commonly known as a Skimming device in order to gain unauthorised access to account information encoded on the magnetic strips as set out in column 3 of schedule A of the charge sheet.
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS Applicant did not only plead guilty to relevant charges, but he actually referred to the contraventions relevant to that specific Act and that is what is referred to in the charge sheet. ** On the proper analysis of the plea explanation and the charge sheet in respect of counts 1 to 17 and the basic elements of the offences there are sufficient basis to justify the conclusion which the Magistrate came to when he indicated that he was satisfied with the plea explanation. The Magistrates conclusion is confirmed by paragraph 2.15 of the plea explanation of the statement in terms of section 112(2) where he said that he had no lawful defence to any charge mentioned in the charge sheet.
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS Applicants submission that he did not set out facts demonstrating that he knew that his conduct was unlawful, but instead that he merely pleaded the law, was entirely unfounded and was rejected. With respect to intent that this was established by his own admission – particularly his statement that he knew that his actions were wrongful and unlawful in that he knew that the cards which he had presented for payment were duplicated or cloned and that the lawful card holders had never at any stage presented the lawful cards for payment.
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS In further determining whether or not, in all the circumstances of the particular matter, there in fact constituted a procedural irregularity, so that a failure of justice had resulted the court was satisfied that the alleged irregularities, such as may have resulted from non-compliance with the provisions of s. 112(2) of the Act, did not result in a failure of justice. (See : S v Carter 2007 (2) SACR 415 (SCA)).
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS Unauthorised access – exceptions – lawful authority Sheryl Cwele, & anor v State (671/11)  ZASCA 155 (01 October 2012) Record of s exchanged by two suspects, obtained in course of criminal investigations formally admitted by them, was admitted in evidence, in terms of section 15 of the Electronic Communications and Transactions Act (No.25 of 2002) as a true record of s exchanged between. Investigation officer in this case obtained password from one of the suspects so as to gain access to her s. He subsequently compiled a record of the s exchanged between them.
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS Richard ODwyer (RD)* is demonstrative of a number of principles brought out in presentations on the Swaziland draft Computer Crime and Cybercrime bill. RD – British citizen born 1988 (24years), university student – 2007 created TVShacks.net search engine provided on domain name in UK that also had links to sites having movies, music and other copyrighted material. 28
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS May US Justice Department extradition request to UK based on US 2003 UK Extradition Act*, on US District Court order for charges against him for conspiracy to commit copyright infringement and criminal copyright infringement – on account of links provided on website to media on other sites, attracting maximum of five years imprisonment - Earlier, May 2010 TVShack.net domain name was seized by US Customs and Immigration under court order (TVshack.net domain name computer equipment together with five other sites, for committing copy right infringement) 29
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS TVShack.net changed name to TVShack.cc within four hours of seizure TV Shack.cc seized in Nov with eighty two other domains ( seizure described by Motion Picture Association of America as largest takedown of illegal movie and television websites in a single action by the Federal govt.) RD lawyers claimed US lacked jurisdiction because TVShack.net was not hosted on American servers. 13 January UK magistrates court ruled RD could be extradited to US, and extradition approved by UK Home Secretary. 30
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS RD appealed against decision. November 2012 UK/US reached mutual agreement to avoid extradition which entailed RD voluntarily going to US, pay a small compensation for the infringement and giving undertaking not to infringe copyright laws again. 31
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS RD demonstrated principles: - International co-operation and mutual legal assistance agreements (US /UK 2003 extradition treaty, UK Ministers extradition approval following Magistrates court decision), - jurisdiction (impact of illegal act/offence in requesting country ie based on the first principle of extra-territorial jurisdiction), - copy-right infringement, liability of hyperlink provider (links to infringing material), - criminal law principles relating to conspiracy to commit an offence (aiding and abetting), - procedural tools(seizure, court orders obtained, observance of safeguards of fundamental rights) - Penalties (compensation/fines paid) 32
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS Restitution - issues - means available to pay, ability of courts to quantify financial loss – civil court domain Geoffrey Osowski and Wilson Tang, for example, who were former accountants of Cisco Systems Inc., and who had illegally issued more than US$8million worth of stock to themselves through use of companys computers - sentences of 34 months imprisonment were made in addition to restitution orders amounting to US$7.9 million (see: State V Peterson (child pornorgraphy) –sentenced to four and half years with lifetime supervision on release in connection with child pornography found on his computer 33
TRANSPOSITION OF MODEL LAW CASE DEMONSTRATIONS Cox v Riley - interference with computer data - changes to programs or data could be considered to be criminal damage to physical medium on which that data was stored. Se also R v Whitely - in order for criminal damage to be made out, changes would have to result in an impairment of value or usefulness of disc to owner. Changes of a lesser nature would not suffice: [if] the hackers actions do not go beyond, for example, mere tinkering with an otherwise empty disc, no damage would be established. Irish Criminal Law Journal - Volume 15, No.1, 2005; 34