Australian Approach to Dealing with Cybercrime

1. Australian Approach to Dealing with Cybercrime

2. “We should not be fighting crime of the twenty-first century with tools of the nineteenth” Jack Straw, Home secretary, United Kingdom, 1997

3. The Australian Centre for Police Research (ACPR) defined Electronic Crime as: “Offences where a computer is used as a tool in the commission of an offence, as the target of an offence, or used as a storage device in the commission of an offence”.

4. The environment • Private Sector • AUSCERT, Australia Computer Emergency Response Team (CERT)

5. The environment • Australian Law Enforcement response • State Agencies • Commonwealth • Other Agencies

6. 7 Australian States • NSW Police • Queensland Police • Victoria Police • Tasmanian Police • Australian Capital Territory Police • Western Australia Police • Northern Territory Police

7. The environment • Commonwealth Australian Federal Police

8. Other Agencies • Australian Crime Commission (ACC) • Australian Customs Service (ACS) • Australian Transaction Reports and Analysis Centre (AUSTRAC) • Defence Signals Directorate (DSD) • Australian Securities and Investment Commission • Etc.

9. The environment • Contained in Law Enforcement Planning Document (LEPD) A Strategic Plan for Commonwealth Law Enforcement (2001) • Formation of Australian High Tech Crime Centre (AHTCC)

10. Legislative requirements for dealing with cybercrime

11. Overview • Background to legislation • Case law • Definitions • Offences • Search Warrant Legislation • Telecommunications act 1997

12. Background To legislation

13. Background to legislation The legislation evolved from the Model Crime Code Officers Committee (MCCOC) of the Standing Committee of the Attorneys-General (SCAG)

14. Background to legislation Cyber crime legislation introduced in 2001 Section 477 Serious Computer Offences Criminal Code Act 1995

15. Definitions

16. Section 476 Section 476.1 access, to data held in a computer

17. Section 476.1 cont. • Commonwealth computer means a computer owned, leased or operated by a Commonwealth entity. • electronic communication means a communication of information in any form by means of guided or unguided electromagnetic energy.

18. Section 476.1 cont. • impairment of electronic communication to or from a computer

19. Section 476.1 cont. • modification • unauthorisedaccess, modification or impairment

20. Section 476.2 cont. 476.2 Meaning of unauthorised access, modification or impairment

21. 476.3 Section 15.1 (extended geographical jurisdiction – Category A applies to offences under this part)

22. Reference to other Legislation • “Data storage device” and “electronic communication” • Electronic Transactions Act 1999

23. Case Law

24. Case law The case law for that damage is founded in Samuels v Stubbs (1972) 4 SASR 2000

25. Case law cont. More relevant to magnetic storage was Cox v Riley (1986) 83 Cr App R. 54

26. Criminal Code Act 1995 (Cwth) Part 2.7 - Geographical jurisdiction Section 15.1

27. Section 15.1 15.1 Extended geographical jurisdiction category A (1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless: (a) the conduct constituting the alleged offence occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or

28. Section 15.1cont. (b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or

29. Section 15.1cont. (c) the conduct constituting the alleged offence occurs wholly outside Australia and: (i) at the time of the alleged offence, the person is an Australian citizen; or (ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

30. Section 15.1cont. (d) all of the following conditions are satisfied: (i) the alleged offence is an ancillary offence; (ii) the conduct constituting the alleged offence occurs wholly outside Australia; (iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. Note: The expression offence is given an extended meaning by subsection 11.2(1), section 11.3 and subsection 11.6(1).

31. Section 16.2 When conduct taken to occur partly in Australia

32. Section 16.2 Sending things (1) For the purposes of this Part, if a person sends a thing, or causes a thing to be sent: (a) from a point outside Australia to a point in Australia; or (b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia.

33. Section 16.2 cont. Sending electronic communications (2) For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication: (a) from a point outside Australia to a point in Australia; or (b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia.

34. Section 16.2 cont. Point (3) For the purposes of this section, point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.

35. Division 477 Serious Computer Offences

36. 477.1 Unauthorised access, modification or impairment with intent to commit a serious offence • Penalty 5 years

37. 477.2 Unauthorised modification of data to cause impairment • Penalty 10 years

38. 477.3 Unauthorised impairment of electronic communication • Penalty 10 years

39. Division 478—Other computer offences

40. 478.3 Possession or control of data with intent to commit a computer offence • Penalty 3 years

41. 478.4 Producing, supplying or obtaining data with intent to commit a computer offence • Penalty 3 years

42. 478.1 Unauthorised access to, or modification of, restricted data • Penalty 2 years

43. 478.2 Unauthorised impairment of data held on a computer disk etc. • Penalty 2 years

44. Other offences to consider

45. Other offences to consider • Part 4.3 Sabotage • Division 134 Obtaining property or a financial advantage by deception • Division 400 Money laundering • 474.19 to 474.23 Child pornography

46. Other offences to consider cont. Division 474 Telecommunications offences; 474.15 Using a carriage service to make a threat 474.16 Using a carriage service for a hoax threat 474.17 Using a carriage service to menace, harass or cause offence

47. Issues relating to copying and seizing electronic data from search warrants

48. Search Warrant Legislation Crimes Act 1900 Part 10 Division 10.3 Commonwealth Crimes Act 1914 Division 2

49. Overview • Powers to copy/seize • Limitations on powers to search/seize • Legislation

50. Powers to copy/seize cont. Search Warrant • Can seize under warrant, provided you have formed reasonable grounds and the thing is named in warrant OR • Thing can be removed off-site to be examined under s3K and s199