CYBER CRIME A COMPARATIVE LAW ANALYSIS SANDRA MARIANA MAAT. submitted in part fulfilment of the requirements for the degree of MAGISTER LEGUM.

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1 CYBER CRIME A COMPARATIVE LAW ANALYSIS by SANDRA MARIANA MAAT submitted in part fulfilment of the requirements for the degree of MAGISTER LEGUM at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROF D P VAN DER MERWE NOVEMBER 2004

2 i SUMMARY The Electronic Communications and Transactions Act, 25 of 2002, eradicated various lacunae that previously existed in respect of cyber crimes. Cyber crimes such as inter alia hacking, rogue code, unauthorised modification of data and denial of service attacks have now been criminalised. Specific criminal provisions in relation to spamming, computer-related fraud and extortion have also been included in the Act. It is argued that theft of incorporeal items such as information has already been recognised in our law, but has not been taken to its logical conclusion in our case law. However, there are instances where neither the common law nor our statutory provisions are applicable and where there is still a need for legislative intervention. The Act sufficiently deals with jurisdiction, the admissibility of data messages, the admissibility of electronic signatures and the regulation of cryptography. Cyber inspectors are a new addition to law enforcement.

3 ii KEY TERMS Cyber crime Hacking Rogue code Denial of service attacks Unauthorised interception Computer-related fraud Theft of information Cyber inspectors Cryptography Digital signatures

4 iii TABLE OF CONTENTS SUMMARY.. I KEY TERMS... ii TABLE OF CONTENTS.....iii CHAPTER 1 INTRODUCTION 1.1 THE ELECTRONIC FRONTIER DEFINING THE PROBLEM CHAPTER 2 CYBER CRIME DEFINED 2.1 COMPUTERS AND DATA CYBER OR INFORMATION TECHNOLOGY CRIME International definitions South African definitions A proposed definition of the terms cyber crime or information technology crime..21 CHAPTER 3 UNAUTHORISED ACCESS 3.1 INTRODUCTION.23

5 iv 3.2 WHAT IS HACKING? SHOULD HACKING BE CRIMINALISED? COMPARATIVE LAW ANALYSIS IN RESPECT OF HACKING United States of America Federal laws Individual States United Kingdom Germany Greece Australia Singapore and Malaysia INTERNATIONAL RESPONSES BY THE COUNCIL OF EUROPE SOUTH AFRICAN OFFENCES BEFORE THE ENACTMENT OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT Housebreaking Trespassing Act Malicious injury to property Fraud Crimen Iniuria THE SOUTH AFRICAN ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT The criminal action (conduct) Unlawfulness Culpability and criminal capacity Related provisions Sentence. 68

6 v 3.8 FURTHER LEGISLATION IN SOUTH AFRICA IN RESPECT OF UNAUTHORISED ACCESS OFFENCES CHAPTER 4 UNAUTHORISED MODIFICATION 4.1 INTRODUCTION DANGEROUS OR ROGUE CODE Viruses Worms Trojan Horse Logic bombs Bacterium Crab Hoaxes or virtual viruses SHOULD UNAUTHORISED MODIFICATION BE CRIMINALISED? COMPARATIVE LAW ANALYSIS IN RESPECT OF UNAUTHORISED MODIFICATION OFFENCES United States of America Federal statutes State Laws United Kingdom Germany Greece Singapore Philippines Australia Canada..100

7 vi 4.5 INTERNATIONAL RESPONSES BY THE COUNCIL OF EUROPE SOUTH AFRICAN OFFENCES BEFORE ENACTMENT OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT Malicious injury to property Housebreaking with the intent to commit an offence Trespass Act THE SOUTH AFRICAN ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT The criminal action (conduct) Unlawfulness Culpability Related provisions Sentence FURTHER SOUTH AFRICAN LEGISLATION IN RESPECT OF UNAUTHORISED MODIFICATION OFFENCES 117 CHAPTER 5 DENIAL OF SERVICE ATTACKS 5.1 INTRODUCTION INTERNATIONAL RESPONSES The Unites States of America and the United Kingdom Canada Council of Europe SOUTH AFRICAN RESPONSES South African Law Commission The Electronic Communications and Transactions Act 125

8 vii CHAPTER 6 UNAUTHORISED INTERCEPTION 6.1 INTRODUCTION INTERNATIONAL LEGISLATIVE RESPONSES INTERNATIONAL RESPONSES BY THE COUNCIL OF EUROPE SOUTH AFRICAN RESPONSES The Interception and Monitoring Prohibition Act The Interception and Monitoring Bill The Regulation of Interception of Communications and Provision of Communication-Related Information Act The Electronic Communications and Transactions Act. 135 CHAPTER 7 DEVICES 7.1 INTRODUCTION INTERNATIONAL RESPONSES United States of America and the United Kingdom Canada The Convention on Cybercrime SOUTH AFRICAN RESPONSES..143 CHAPTER 8 CYBER OBSCENITY 8.1 INTRODUCTION CHILD PORNOGRAPHY. 148

9 viii International responses to child pornography South African responses CHAPTER 9 EXTORTION 9.1 INTRODUCTION INTERNATIONAL RESPONSES TO COMPUTER-RELATED EXTORTION SOUTH AFRICAN RESPONSE TO COMPUTER-RELATED EXTORTION CHAPTER 10 COMPUTER-RELATED FRAUD 10.1 INTRODUCTION INTERNATIONAL EXAMPLES United States of America United kingdom Australia INTERNATIONAL RESPONSES BY THE COUNCIL OF EUROPE THE COMMON LAW CRIME OF FRAUD IN SOUTH AFRICA Introduction Misrepresentation Prejudice Unlawfulness and culpability Attempted fraud..174

10 ix 10.5 SECTION 87(2) OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT SPAMMING CHAPTER 11 THEFT 11.1 INTRODUCTION THEFT OF INFORMATION International examples The South African common law crime of theft with specific reference to theft of information Introduction Appropriation A Certain kind of property Intention to permanently deprive the owner of his property Comparison between theft, unauthorised use and copyright IDENTITY THEFT South African position regarding identity theft International responses..202 CHAPTER 12 JURISDICTION 12.1 INTRODUCTION INTERNATIONAL RESPONSE BY THE COUNCIL OF EUROPE SOUTH AFRICAN POSITION...206

11 x CHAPTER 13 INVESTIGATING CYBER CRIME 13.1 INTRODUCTION ARREST EXTRADITION SEARCH AND SEIZURE CYBER INSPECTORS CHAPTER 14 PROVING CYBER CRIME 14.1 INTRODUCTION DOCUMENTARY EVIDENCE, REAL EVIDENCE AND HEARSAY International position South African responses ENCRYPTION ELECTRONIC SIGNATURES CHAPTER 15 PREVENTING CYBER CRIME 15.1 EDUCATION AND AWARENESS INFORMATION TECHNOLOGY SECURITY DETECTION, REPORTING AND THE JUSTICE SYSTEM INTERNATIONAL CO-OPERATION...247

12 xi CHAPTER 16 SIGNING OFF.249 BIBLIOGRAPHY. 253 LIST OF ABBREVIATIONS TABLE OF CASES TABLE OF STATUTES..284 SUBJECT INDEX

CYBERCRIME LEGISLATION DEVELOPMENT IN NIGERIA AN UPDATE. Octopus Conference, Strasbourg 06 June, 2012

CYBERCRIME LEGISLATION DEVELOPMENT IN NIGERIA AN UPDATE Octopus Conference, Strasbourg 06 June, 2012 T.GEORGE-MARIA TYENDEZWA Head, Computer Crime Prosecution Unit, Federal Ministry of Justice, Abuja,