The offence under Section 2 is committing the unauthorised access offence under Section 1 with intent to commit or facilitate the commission of a more serious 'further' offence. It is not necessary to prove that the intended further offence has actually been committed.
Examples of such offences are obtaining the unauthorised access with the intention of committing theft, such as by diverting funds, which are in the course of an electronic funds transfer, to the defendants own bank account, or to the bank account of an accomplice; or where the defendant gained unauthorised access to sensitive information held on computer with a view to blackmailing the person to whom that information related.
A person found not guilty of a section 2 or 3 offence by a jury can be convicted of a section 1 offence see Criminal Law Act section 6 3. The effect of Section 3 is that a person commits an offence if he performs any unauthorised act in relation to a computer, knowing it to be unauthorised, if he intends by doing the act to do one of the things set out in Section 3 2 , or if he is reckless as to whether by doing the act he will do one of the things set out in Section 3 2.
Examples of this are deliberate or reckless impairment of a computer's operation, preventing or hindering access to computer material by a legitimate user or impairing the operation or reliability of computer-held material. The offender must know that the act was unauthorised.
In DPP v Lennon JP , Section 3 should be considered in cases involving distributed denial of service attacks DDoS , as the term "act" includes a series of acts, there is no need for any modification to have occurred and the impairment can be temporary. DDoS is a cyber-attack in which the perpetrator seeks to make a machine or network resource unavailable to its intended users by temporarily or indefinitely disrupting services of a host connected to the Internet using incoming traffic originating from many different sources flooding the victim, making it difficult to stop the attack by blocking just one source.
It has been compared to crowds of people blocking an entrance to business premises making it impossible for legitimate customers to enter and thereby disrupting trade.
If a computer is caused to record information which shows that it came from one person, when it in fact came from someone else, that manifestly affects its reliability and thus the reliability of the data in the computer is impaired within the meaning of Section 3 2 c : Zezev and Yarimaka v.
Governor of H. Simply modifying the contents of a computer is not criminal damage within the meaning of Section 10 of the Criminal Damage Act In Cox v Riley QBD , the court stated that it shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition.
The maximum sentence on indictment is 14 years, unless the offence caused or created a significant risk of serious damage to human welfare or national security, as defined in Section 3 a and b , in which case a person guilty of the offence is liable to imprisonment for life.
Section 3ZA is designed to cater for computer misuse, where the impact is to cause damage to, for example, critical national infrastructure and where the maximum penalty of ten years available under Section 3 may be inadequate. Particular consideration should be given to the required mens rea and actus rea for this offence.
The rationale behind the creation of this offence is the market in electronic malware or 'hacker tools'; which can be used for breaking into, or compromising, computer systems. The prosecution has to prove the defendant had the necessary intent. Possession alone is not an offence. Section 3A 2 of the CMA covers the supplying or offering to supply an article 'likely' to be used to commit, or assist in the commission of an offence, contrary to Sections 1 or 3.
For example, whether the article was circulated to a closed and vetted list of IT security professionals or was posted openly. In the offence under Section 3A 2 , the relevant mens rea is 'belief' and mere suspicion is not enough. In determining the likelihood of an article being used or misused to commit a criminal offence, prosecutors should consider the following:.
Where there is sufficient evidence to meet the evidential test under the Code for Crown Prosecutors, the following Public Interest factors should be carefully considered:. CMA suspects can be disproportionately represented by individuals who are under 18 and may be more neurologically diverse than other types of offenders.
Further guidance can be found on these matters can be found in the legal guidance on Youth Offenders and Suspects with Mental Health Conditions. When considering charging for CMA offences, in line with paragraph 2.
CMA offences are often committed as a precursor to another offence such as fraud or blackmail. In these circumstances a prosecutor may decide to charge the offence for which the sentence is likely to be higher in order to reflect the nature of the offending.
For example phishing false financial e-mails , pharming cloned false websites for fraud and Trojan installation viruses could be prosecuted under the Fraud Act. An offence of making or supplying articles for use in fraud, contrary to Section 7, is punishable by a maximum of 10 years' imprisonment. An offence of possession of articles for use in fraud contrary to section 6 is punishable by a maximum of 5 years' imprisonment.
Unlawful interception of a public telecommunication system, a private telecommunication system, or a public postal service,. The common-law offence of misconduct in public office, for example, where a police officer misuses the PNC. Section Creates offences relating to the obstruction of inspections of personal data by the Information Commissioner. Section Creates an offence for persons who are currently or have previously been the Information Commissioner, a member of the Information Commissioner's staff or an agent of the Information Commissioner from disclosing information obtained in the course of, or for the purposes of, the discharging of the Information Commissioners functions unless made with lawful authority.
Section Creates an offence for a person to intentionally or recklessly make a false statement in response to an information notice. Section Creates an offence where the Information Commissioner has given an information notice or an assessment notice requiring access to information, a document, equipment or other material, it is an offence to destroy or otherwise dispose of, conceal, block or where relevant falsify it, with the intention of preventing the Commissioner from viewing or being provided with or directed to it.
Section Creates an offence of the deliberate or reckless obtaining, disclosing, procuring and retention of personal data without the consent of the data controller.
Section Creates a new offence of knowingly or recklessly re-identifying information that has been de-identified without the consent of the controller who de-identified the data.
This responds to concerns about the security of de-identified data held in online files. For example, recommendations in the Review of Data Security, Consent and Opt-Outs by the National Data Guardian for Health and Care called for the Government to introduce stronger sanctions to protect de-identified patient data.
Section Creates an offence of the alteration of personal data to prevent disclosure following the exercise of a subject access right. The relevant subject access rights are set out in subsection 2. Section Creates an offence for an employer to require employees or contractors, or for a person to require another person who provides goods, facilities or services, to provide certain records obtained via subject access requests as a condition of their employment or contract.
It is also an offence for a provider of goods, facilities or services to the public to request such records from another as a condition for providing a service. In England and Wales, proceedings for an offence under this Act may be instituted only a by the Information Commissioner, or b by or with the consent of the Director of Public Prosecutions.
There are no official guidelines for sentencing for offences under CMA. The below are examples of precedent sentences. There have been calls to reform or scrap the Computer Misuse Act in recent years, with many security researchers and law enforcement professionals calling into question its ability to cope with the complexities of modern-day computing. Perhaps the most obvious complaint is that the act does not accommodate for recent innovations in computing, representing a time when a computer mainly referred to a desktop PC.
Another area that most seem to agree on is that the nature of cyber crime has evolved beyond the scope of the Computer Misuse Act. This underlines one of the main shortfalls of the Act — the evolution of using computers to commit fraud to the computer becoming the main conduit for fraud. The subjective interpretation of the act ultimately creates friction between law enforcement and security researchers, with some arguing that judges often appear to misunderstand the wider issues facing the industry.
The police have dedicated many more resources to this area over the past five years, but until every police officer understands cybercrime, we will be playing catch up. Richard Millett, cyber security training lead at Firebrand Training and regular cyber security advisor for police forces across the UK, explains that many cyber crime cases are instead tried under other legislation, such as fraud and theft, not only because of a lack of definitions but also because much tougher penalties can be issued as a result.
The financial and economic damage that has been inflicted by some individuals is not reflected in the penalties that have been applied, running into millions in many cases. The most difficult challenge facing cyber security researchers trying to operate within the scope of the act is its failure to distinguish between criminal and ethical hacking. The main problem is that the act makes it illegal to access a computer system without consent, regardless of the system involved.
Although this technicality may limit the actions of ethical hacking , or may leave some wary about potential prosecution, Yapp adds that he is unaware of any cases involving UK researchers being sanctioned by law enforcement because of their work.
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What is GDPR? Everything you need to know, from requirements to fines. Computer Misuse Act penalties There are three levels of penalty if you are prosecuted under the Computer Misuse Act and they are applied according to the crime and severity of the act. Computer Misuse Act expansion and controversy In the three decades since , the digital landscape has changed beyond recognition. Related Resource Nine traits you need to succeed as a cyber security leader What characteristics and certifications make a successful cyber security leader?
Free download. Is the Computer Misuse Act fit for purpose? Featured Resources Turning data into unmatched business value Using data to drive better outcomes Free Download. This decrease is a positive step, showing just how important anti-virus technology can be.
That said, even with such positive strides made to reduce cybercrime, there have been cases whereby individuals have been prosecuted for simply doing their job, such as reporters. Alternatively, please email us at info noblesolicitors. What is the Computer Misuse Act? You can be found guilty of an offence under this legislation if you: Cause a computer to perform any function with intent to secure access to any program or data held in any computer when; Access is unauthorised; and The person knows at the time when they cause the computer to function that is the case.
Amendments to the Computer Misuse Act The act is still used today, mainly in cases where people are facing accusations of data harvesting, hacking and unauthorised encryption of data.
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