Computer crime and criminal procedure

Sunil D B Abeyratne

Any person who obtains unauthorized access to a computer or network (Computer hacking and cracking), modification of a computer or network unlawfully, offences committed against national security, dealing with data unlawfully obtained illegal interception of data, using of illegal device, unauthorized disclosure of information enabling access to a service are the offences defined under sections 3 to 10 of the Act respectively.

Sunil D B Abeyratne

Attempts to commit, abetment and conspiring to commit aforesaid offences are also offences under sections 11, 12 and 13 of the Act (earlier these offences were discussed in detail).

Procedural provisions

Part two of the Computer Crime Act provides provisions for investigations in connection with offences under the same Act. These procedural provisions are important to accelerate investigations due to nature of computer evidence and all offences are cognizable offences under this Act (s.16) and shall be investigated, tried or otherwise dealt according to the provisions of the Code of Criminal Procedure Act No. 19 of 1979 unless as otherwise provided under Computer Crime Act (s.15).

The Minister may make regulations under this Act for any matter that is authorized or required to be made under this Act or required to be prescribed under this Act, for the purpose of carrying out or giving effect to the principles and provisions of the same Act.

Who are the investigators under Computer Crime Act?

A panel of experts will be appointed by the Minister-in-charge of the subject of Science and Technology. qualifications, experience and remuneration of such experts are explained in the section 17 of the Act.

Bowers of investigators

The Act specifically states that such experts called upon to assist any police officer shall have power to enter any premises along with a police officer not below the rank of a sub-inspector, access any information system, computer or computer system or any program, data or information held in such computer to perform any function or to do any such other thing, require any person to disclose any traffic data, oral examination of any person, do such other things as may be reasonably required for the purpose of the same Act.

For the purpose of an investigation under this Act, an expert or a police officer may have powers to search and seizure of any information including subscriber information and traffic data in the possession of any service provider, intercept any wire or electronic communication including subscriber information and traffic data, at any stage of such communication with warrant (s.18).

Further, if preservation of information reasonably required for the purposes of investigations (s.19), expert or Police officer has powers to arrest, search and seize any information accessible within any premises without a warrant in the course of investigation (s.21).

Legal position of reports prepared by investigators

Section 26 of the Act specifies that a certificate, declaration, information, data, report or any other similar document duly signed and issued by an expert under the Act or a Police officer and duly authenticated by such expert of the panel in the prescribed manner shall be admissible in evidence and prima facie evidence of the facts stated therein.

What are the orders that can be issued against person in control of computer or computer system to ensure that the information be preserved for the purpose of investigation of offences under Computer Crime Act?

When an expert or a Police officer is satisfied that the information is reasonably required for the purpose of an investigation under this Act and there is a risk that the information may be lost, destroyed, modified or rendered inaccessible, he can issue a written notice to the person in control of such computer or computer system to ensure that the information be preserved for such period in accordance with such notice not exceeding seven days.

Further, a Magistrate can extend such period in aggregate not more than 90 days on an application made by such expert or Police officer (s.19).

Duties of investigators

It is the duty of the Police officer to record and afford access to seize data to the owner or Person-in-charge of the computer or computer system (s.22) and to assist for investigation (s.23) etc. Section 24 of the Computer Crime Act provides provisions for maintenance of confidentiality of information obtained in the course of an investigation.

Rights of investigators

Section 28 provides immunity from legal proceedings against experts (who are peace officers under the section 29 of the Act) and Police officers appointed for investigations under the Act.

Provisions to maintain international cooperation

There is no doubt that international Cooperation will play a vital role for investigating and recovery of evidence under this Act since computer programs online messages and cross territories of the countries very often. To fulfil this requirement some provisions have been inserted to the Computer Crime Act.

Section 33 of the Act provides where a request is made to the Government of Sri Lanka, by or on behalf on another Government for the purpose of extradition of the person accused or convicted of an offence under this Act the Minister shall forthwith notify the requesting Government of the measures which the Government of Sri Lanka has taken, or proposed to take to extradite the person for that offence. Rights of non-resident persons arrested under this Act specified under Section 34 of the Act.

Under section 35 of the Computer Crime Act the provisions of the Mutual Assistance in Criminal Matters Act No. 25 of 2002 are applicable for the investigation and prosecution of the offences under the Computer Crime Act.

Provisions under the Mutual Assistance in Criminal Matters Act explain that the procedure shall be followed to make a request from the authority of a foreign State by Sri Lankan Authority and vice versa to transfer of evidence, thing, witnesses and accused and the procedure after complying with such request.

Other computer related offences

Publication of an obscene article electronically may be a criminal offence under amended section 2 of the Obscene Publication Ordinance, No. 22 of 1983.

Section 286B of the Penal Code (Amendment Act No. 16 of 2006) introduced the offence as it is a duty of person providing service by computer to prevent sexual abuse of a child and person who contravenes the same shall be guilty of an offence.

Further, storing or distribution of child phonography by e-mail and the Internet may be an offence under section 286(c) of the Penal Code (Amendment) No. 22 of 1995 read with provisions under Electronic Transactions Act No. 19 of 2006.

However, it is time to bring new amendments to the same law avoiding certain unnecessary disputes that arise over interpretation of creation of pseudo-photographs under this Ordinance.

Under Intellectual Property Act

Chapter XXXVIII of the Intellectual Property Act No.36 of 2003 defines the Offences and Penalties against violation of Intellectual Property Rights and these provisions are applicable for Intellectual Property Rights violations in cyber space as well.

Offences under Sri Lanka Telecommunications Act No. 25 of 1991

'Intrusion', 'interception and disclosure of contents of message' by telecommunication officials, other than in the course of his duty are offences under sections 52-54 of the Act.

"Usage information" means information relating to the identity of calling subscriber, called subscriber, date and time of originating of message and the type of message for the purpose of sections 52 and 54.

Provisions under Code of Criminal Procedure Act No. 19 of 1979 are applicable for investigations of these offences.

Offences under Payment Devices Frauds Act

The Act was introduced to deal with fraudulent transactions taken place in connection with electronic devices and similar provisions relating to Computer Crime Act on procedural matters can be found under the present Act as well.

Offences under this Act are cognizable offences. Section 12 explains on Confidentiality of information obtained in the course of an investigation.