Computer Misuse Act Essay PDF

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The Computer Misuse Act 1990 is an umbrella term for any criminal offence that takes place with the use of a computer. Examples of this include, computing hacking, the creation and passing on of computer viruses and denial of service attacks. The Computer Misuse Act was created in 1990 after debates that involved the Crown Prosecution Services being unable to criminalise offences carried out using a computer had arisen. It is evident that ‘the legislation was created to criminalize unauthorized access to computer systems”.1 The Law Commission and Scottish Law Commission furthered the creation of the Computer Misuse Act 1990 in a report which outlined specific computer – related offences which opened doors for a new legislation to be created. This was then incorporated into the Computer Misuse Act 1990. While the Computer Misuse Act 1990 was created because there was a struggle to apply old legislation to offences carried out through the use of a computer, the term “computer” itself is ironic as it is not described anywhere in the Computer Misuse Act 1990.

The first issue we come across in this problem question is JoJo looking through several files saved on Nikos’ computer even after being told by Nikos that “you must never look through my computer, I will never give you permission to do this”. JoJo is criminally liable under section 1 of the Computer Misuse Act 1990 which states that “a person is guilty of an offence if: b) the access he intends to secure, or to enable to be secured, is unauthorised”2. JoJo has essentially ‘hacked’ Nikos’ computer. The actus reus of a crime is the “the physical act of the crime” 3. In this case “the actus reus of hacking is “the defendant must cause a “computer” to “perform any function””4. The term “computer” in itself can be said to be ironic as it is not defined anywhere in the Computer Misuse Act. Some say that “… the defining characteristics of a computer are the abilities of an appliance to: (i) to store information; (ii) to

1 What is Computer Misuse Act 1990 (CMA)? - Definition from WhatIs.com 2 Computer Misuse Act 1990 3 Actus Reus - Crime Museum 4 Jonathan Herring, Criminal law, 1998

retrieve the information so stored; and perhaps most importantly (iii) to process information”5. There is an emphasis on the word “any” when discussing the idea of causing a computer to “perform any function”. Switching on a computer and pressing a button making the screen turn on can constitute to “performing a function” for the purposes of the offence. For example, in the case of Ellis v DPP [2001]6, the defendant was convicted of the offence for pressing a key on a keyboard which caused the computer to display a new screen on the monitor. In terms of the general principle of hacking, “accessing one single computer directly without permission can be enough to constitute the offence”. The mens rea of hacking states that “the defendant must “intend to secure access” and “know the access is unauthorised”7. From the scenario, we know that JoJo had intent, he “intentionally attempted to secure access to data held in a computer”. The term “access” is defined widely by s.17 CMA 1990 as including any “use” of a computer, which JoJo did, therefore making him criminally liable. Also, JoJo under section 17(5) CMA 1990, was unauthorised to access the data as it states “(2) he does not have consent to access the kind in question to the program or data from any person who is entitled”8. The person entitled is Nikos and Nikos told JoJo that he will never have permission to go through his computer. Therefore, under the Computer Misuse Act 1990, JoJo is criminally liable under the offence of hacking as his actus reus and mens rea were present.

JoJo, out of anger, decided to spam his boss with large volumes of emails recklessly causing all email addresses hosted on that server to become inoperative for a week. Under section 3 of the Computer Misuse Act 1990, there is an offence of unauthorised impairment. It is said that a person is guilty of an offence if “either subsection (2) or subsection (3) apply”. In this case subsection (3) does apply as it states that “if the person is reckless as to whether the

5 Ormerod, D. and Laird, K. (2015) Criminal Law, Oxford University Press. 6 Ellis v DPP [2001] EWHC 362 7 Jonathan Herring, Criminal law, 1998 8 Computer Misuse Act 1990

act will do any of the things mentioned”9. The thing mentioned being, “to prevent or hinder access to any program”. The program could possibly be the server that hosted all the email addresses. “The actus reus of “unauthorised impairment” is that the defendant must do an “act” in relation to a “computer””10. The mens rea of this act is that “the defendant must intentionally or recklessly: impair the operation of a program or the reliability of data”11. In this case, JoJo’s reckless act of bombarding his boss with emails led to the impairment of the host server. JoJo’s mens rea was present even though he didn’t intend to crash the host server, the mens rea mentions the idea of acting recklessly, which is how JoJo acted. While this is “unauthorised impairment”, under section 3 of the Computer Misuse Act 1990, it can also be seen to be an act of ‘denial of service’ which is a criminal offence under the Computer Misuse Act 1990. This act is known as “mailbombing”. Mailbombing is when you “send huge volumes of emails to an email address in an attempt to overflow the mailbox”12. This in turn meant that JoJo’s action caused the effect of denying users the ability to use the server. In DPP v Lennon [2006]13, it was held that s.3 isn’t just limited to sending of viruses but can also be extended to acts such as mailbombing. Overall, in this instance, JoJo is criminally liable under the Computer Misuse Act 1990 under section 3, the offence of “unauthorised impairment”.

JoJo sent an email to Nikos in an attempt to apologise to him but in turn ended up sending him a virus which deleted all his files with no intention to impair his computer. The sending of viruses comes up as an offence under s.3 of the Computer Misuse Act 1990 as the offence of unauthorised impairment. As stated earlier, the actus reus of “unauthorised impairment” is the defendant must do an act in relation to a computer, which in this case is the sending of the email to Nikos. The mens rea of this unauthorised impairment is “the defendant must

99 Alisdair A Gillespie, Cybercrime (Routledge 2015) 10 Jonathan Herring, Criminal law, 1998 11 Jonathan Herring, Criminal law, 1998

12

Executive Protection - The Next Level by Richard Hardaker 13 DPP v Lennon [2006] EWCH 1201

intentionally or recklessly: impair the operation of the computer”14, in which JoJo did when he sent the virus to Nikos’ computer. JoJo didn’t have the intentions to ruin Nikos’ computer by deleting all his files, but this was an outcome of his recklessness. From R v Pile [1995]15 and R v Brogden [2001] 16 we know that “designing and distributing computer viruses which then alter or damage the computer systems of others will amount to an offence under s.3 of the Computer Misuse Act 1990. While this is true, JoJo could also be argued to have performed a DOS act which is ‘denial of service’ attack. DOS is an attack in which the computer is unable to perform the same functions as it used to therefore meaning that there is a denial of service. The fact that the virus JoJo had recklessly sent to Nikos’ computer had ended up deleting all his files, there was a denial of service as Nikos is unable to access the files anymore. DOS attacks while being a criminal offence, is also a controversial topic. It opens up debates as to whether such attacks should be treated as criminal.

Overall, from the scenario, JoJo has committed criminal offences under the Computer Misuse Act 1990 whether it was intentional or reckless. He is criminally liable under section 1 of the Computer Misuse Act which is the offence of “hacking” and section 3 of the Computer Misuse Act which is the offence of unauthorised impairment, through his reckless acts which led to the effect of denying the lawful user or the server the ability to use it.

14 Computer Misuse Act 1990 15 R v Pile (1995), unreported 450 16 R v Brogden [2006]

Bibliography: 1. Actus Reus - Crime Museum 2.

ALISDAIR A GILLESPIE, CYBERCRIME (ROUTLEDGE 2015)

3. Computer Misuse Act 1990 4.

DPP v Lennon [2006] EWCH 1201

5. Ellis v DPP [2001] EWHC 362 6. Executive Protection - The Next Level by Richard Hardaker 7. Jonathan Herring, Criminal law, 1998 8. Ormerod, D. and Laird, K. (2015) Criminal Law, Oxford University Press. 9.

R v Brogden [2006], unreported

10. R v Pile (1995), unreported 450 11. What is Computer Misuse Act 1990 (CMA)?...