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Executive Summary

E1 There is public interest in encouraging the use of computers and appropriate standards for users of computers. Criminal sanctions should be available to enforce those standards. Computers allow information to be processed, recorded and transferred quickly and efficiently. It is necessary both to facilitate the use of computer technology (including the removal of barriers to its use) and to provide strong sanctions against reprehensible conduct which, if unchecked, is likely to inhibit use of computer technology.

E2 The Minister of Justice proposes to introduce a Bill into the House of Representatives concerning computer misuse (see New Zealand InfoTech Weekly, 11 April 1999, 1). Consequently, draft legislation is not included in this report. This report sets out the reasons for the Commission’s view that new legislation is needed and explains the nature of the legislation which is thought to be necessary.

E3 It is preferable to enact a comprehensive law dealing with computer misuse rather than to amend, in a piecemeal fashion, legislation currently in existence.

E4 Legislation dealing with computer misuse must address the following elements:

• Unauthorised interception of data stored¹ in a computer;
• Unauthorised accessing of data stored in a computer;
• Unauthorised use of data stored in a computer;
• Unauthorised damaging of data stored in a computer.

The report explains the types of conduct which fall within each of the concepts listed in paragraph E4.²

E5 There are peculiar problems arising from computer misuse. Some forms of misuse will cause loss to the person or persons entitled to the data; others may not. Likewise, some forms of misuse may or may not enable the person concerned to gain a pecuniary benefit at the expense of the person entitled to the data. It is therefore necessary to express any new law in such a way as to encompass the whole continuum of misuse and leave a wide range of sentencing options available. The court can then determine an appropriate sentence in the light of the facts proved in the particular case.

E6 The offences of unauthorised access and interception should require proof by the prosecution of intent:

• in relation to the interception offence, the prosecution should be required to establish an intention to intercept:
• in relation to the offence of access, the prosecution should be required to establish an intention to:

– cause loss or harm to the person entitled to the data or to some third party; or
– gain some form of benefit or advantage either personally or to a third party.

We propose that the terms “loss or harm” and “benefit or advantage” be given a wide meaning and not be limited to pecuniary losses or benefits (see further, para 13). In the case of offences involving use and damage, proof of carelessness should be sufficient to establish an offence.

E7 Our report is presented in the following way:

• Chapter 1 provides an introduction to the subject. This includes a brief summary of the provisions of the existing criminal law which are relevant to computer misuse issues.
• Chapter 2 explains the nature of each of the elements identified in para E4 above with a view to discussing later in the report whether changes are needed to the existing criminal law and, if so, the form which those changes should take.
• Chapter 3 addresses specifically the questions whether the existing criminal law is adequate or whether something more is needed to deal with the problems created by computer misuse.
• Questions of jurisdiction are discussed in chapter 4.
• Recommendations are set out in chapter 5.

E8 There are three Appendices to this report. Appendix A sets out the provisions recommended by the Crimes Consultative Committee in 1991 and legislation to be found in other jurisdictions dealing with similar issues. Appendix B contains a glossary of some technical terms mentioned in this report. Appendix C reproduces chapter 4 of our report Electronic Commerce Part One: A Guide for the Legal and Business Community (NZLC R50 1998) which will enable the reader to consider the issues which arise in relation to the law of torts and the criminal law.