ICT development and computer crime

Sunil D B Abeyaratne Former Bar Association of Sri Lanka Secretary and Colombo Law Society IT Committee Chairman

It is impossible to prevent people from misusing technology and trends are developing to shift the nature of crimes from traditional to hi-tech. Computer or network may be used as a tool or a storage medium to commit crimes.

Sunil D B Abeyaratne

Parliament has enacted the long awaited Computer Crime Act No 24 of 2007 that was gazetted on 13.07.2007 recognising computer offences.

Internationally recognised offences identified under the Computer Crime Act

Part I of the Act explains the offences relating to cyber crimes.

* Section 3 of the Act deals with ‘unauthorised access to any computer or information held in any computer. This is called computer hacking in general.

* Section 4 of the Act has introduced the offence of unauthorised access with an intention to commit an offence. This offence is called computer cracking.

These two sections have covered a wide range of possible illegal actions. Explanation to section 3 and 4 states that the mere ‘turning on’ of a computer is sufficient to fulfill access to any computer and it is not necessary to have unauthorised access directed at any particular program, data or computer, to access information held in any computer. e.g. Sniffing and Phising.

* Section 5 of the Act has introduced the offence of causing a computer to perform a function without the lawful authority (unauthorised modification or damage or potential damage to any computer, computer system or computer program) and it is immaterial whether the consequences referred to therein were of a temporary or permanent nature.

Transmitting of viruses (a malicious program) from a computer to another or computer system to perform a function of such computer or computer system accidentally or negligently and cause that to function in a different way than the normal functions without the authority may be an offence under this section.

Other offences under Computer Crime Act

* Section 6 deals with offences committed against national security, the national economy, or public order by causing a computer to perform a function.

* Section 7 has introduced the offence of obtaining information without lawful authority from a computer or a storage medium of a computer.

* Section 8 explains the offence of illegal interception of data. A Service Provider of a mobile phone connection who intercepts any transmission between such Mobile phone and another connection illegitimately, such person commits an offence under this section.

* Section 9 of the Computer crime Act deals with the offence of using (produce, sell, procures for use, imports, exports, distributes’ of illegal devices.

* Section 10 of the Act has introduced unauthorised disclosure of information enabling access to a service as an offence.

* A person who attempts to commit the aforesaid offences under sections 3,4,5,6,7,8,9,10,11,12,13 and 14 of the Act or who causes such an offence to be committed, shall be guilty of an offence.

* Abetment and conspiracy to commit a computer crime are offences and explained under Sections 12 and 13 of the Act.

Right of a victim under the Computer Crime Act

Section 14 of the Act deals with awarding of compensation to any person or institution for loss or damage caused to him or institution as a result of the committing of an offence under the Act.

Violations of Intellectual Property Rights relating to computers and cyber space

Computer programs are protected under Intellectual Property Act in Sri Lanka No 36 of 2003. Under Section 178 (3) of the Act, any person knowing or having reason to believe that he is in possession or has access to a computer program infringing the rights of another person, and wilfully makes use of such program for commercial gain, he shall be guilty of an offence. If a person downloads a pirated copy of a computer program from the internet knowing or having reason to believe that such information has been obtained illegally, and subsequently sells the same to another person at a price, such person commits an offence under the definition of both the section 7 of the Computer crime Act and Section 178 (3) of the Intellectual Property Act.

There may be Intellectual Property rights violation in cyber space. E.g. Phising, spamming, deep linking, framing, mouse trapping and illegal browsing.

Other offences relating to computers

Publication of an obscene article electronically will 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 a person who contravenes the same shall be guilty of an offence.

Further, storing or distribution of child phonographs 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 in the Electronic Transactions Act No 19 of 2006.

Payment Devices Frauds Act was introduced to deal with fraudulent transactions taking place in connection with electronic devices. Sections 52 and 54 of Sri Lanka Telecommunications Act No 25 of 1991 have identified offences ‘intrusion’ into the contents of a message or its usage of information and ‘interception and disclosure of contents of message’ by telecommunication officials other than in the course of their duty. There is no proper implementation of the Computer crime Act up to date due to various shortcomings like public unawareness of the existence of the Act, shortage of experts and trained Police officers to investigate offences under the Act, non-availability of computer forensic laboratories and so on.

Application of new methodology to investigate and seizure of data stored in computer hardware, software, communication devices, or any other forms, its forensic issues will play a vital role relating to computer crimes and related crimes.