Even in cases where jurisdiction is clear, there are difficulties with enforcement of the law in cyberspace. Criminal and civil wrongs in cyber-space can sometimes be classified into the
familiar categories, but they may also take on new characteristics.
Some of the areas of law concerning cyber-space are as follows.
#YBERCRIMES
H A C K I N G
Hacking is unathorised access to data held in a computer or computer system, changing the data, interfering with electronic communication between computers, or impairing the security, reliability or function of stored electronic data. A person may engage in hacking out of curiosity, for monetary gain, to alter data for some other reason, or maliciously to spread a virus. Hacking also has the potential to be used in an act of terrorism.
The Cybercrime Act 2001 (Cth) amended the Criminal Code 1995 (Cth), as well as the Crimes Act 1914 (Cth) and several other Commonwealth Acts.
It created offences pertaining to computers, data and the internet, now contained in the Criminal Code 1995 (Cth). As these are federal offences, there must be a ‘Commonwealth connecting factor’: for example, the computers are owned or operated by the federal government, the data is held by the federal government, or the offender’s actions are carried out via a ‘telecommunications network’ – which includes the internet.
A hacker may also be charged under state law.
For example, in 2001, a former employee of the company that installed a computerised sewerage Figure 8.3 At work in cyberspace
1 List some of the positive aspects of the global nature of cyberspace.
2 List some of the drawbacks, especially with respect to the enactment and enforcement of laws.
Figure 8.4 The speed at which cyberspace grows means that the law struggles to keep pace.
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The individual and the law
system for Maroochy Shire Council, Queensland hacked into the council’s computers and caused one million litres of raw sewage to run into public parks and creeks in the Sunshine Coast area.
He was convicted on various charges stemming from his breach of s 408D of the Criminal Code 1899 (Qld), which prohibits unauthorised use of identification information for the purpose of committing an indictable offence. The legislation is not specifically about computer hacking. He appealed to the Queensland Supreme Court, where convictions on two of the charges were set aside but the sentence of two years’ imprisonment was not changed (R v Boden [2002] QCA 164).
Refer to Chapter 8 on the Student CD for information relating to United States v Ivanov, 175 F Supp 2d 367
(D Conn 2001).
I N T E R N E T F R A U D
Fraud is intentional misrepresentation or conceal-ment of information in order to deceive or mislead.
On the internet, fraud can be carried out in a number of ways and can occur in conjunction with hacking.
A scam is an attempt to obtain money through deception. Many scams, unique to the internet, have developed in recent years. They can function through unsolicited e-mail, websites promoting pyramid selling (where people are offered the right to sell a product or service, as well as the right to sell the scheme itself in the same way), and unsolicited advertisements that come up when a search is performed.
Perhaps the most well-known e-mail scams are the ones in which e-mail promises the recipient huge rewards for helping a government, a bank, an organisation or a family in Nigeria (or some other country) out of some legal or financial difficulty.
This assistance invariably involves transferring money electronically or supplying bank account details.
Another type of scam is ‘phishing’, in which the recipient of e-mail that appears to be from a bank is asked to submit his or her account details.
The information is then used to steal the person’s money.
Fraud may also be perpetrated through the use of fake websites. In Australian Competition and Consumer Commission v Chen [2002] FCA 1248, the Australian Competition and Consumer Commission (ACCC) sought declarations from the Federal Court of Australia that a foreigner, Richard Chen, had breached key provisions of the Trade Practices Act 1974 (Cth) prohibiting conduct likely to mislead or deceive consumers. Chen, an American, did not live in Australia and all of his activity was conducted from the United States.
He operated three websites that appeared to be associated with the Sydney Opera House, and purported to sell tickets to performances there.
The stated price for the tickets was twice the price of genuine ones, and consumers who provided their credit card details never received tickets.
The Federal Court granted the declarations, as well as an injunction requiring Chen to remove the websites, take steps to prevent Australian residents from accessing them, and stop operating misleading and deceptive websites.
Figure 8.5 Hackers are criminals.
1 7 4 C a m b r i d g e L e g a l S t u d i e s – P re l i m i n a r y
S PA M
Spam is junk mail received electroni cally. Some spam is harmless but much of it is malicious and potentially damaging to the recipient. Spam is also known as unsolicited bulk e-mail. In other words, this is e-mail that the the recipient has not asked for or granted permission to have sent to him or her. It is bulk because it is sent to large numbers of people, often through the use of mailing lists. It does not matter what the content of the e-mail is; if it is unsolicited it is spam.
Under the Spam Act 2003 (Cth), it is illegal to send, or cause to be sent, unsolicited
commercial electronic messages through e-mail, instant message services (IM), telephone text messages (Short Message Service, or SMS), or multimedia message service (MMS). It does not cover faxes, voice telephone calls or messages, or unsolicited ads that pop up to be seen by an internet user.
The Act was passed as a result of public concerns about spam. As discussed above, e-mail can be used for the purpose of fraud. The ways in which people’s e-mail addresses and personal information are collected and handled for the purpose of
‘spamming’ also raises privacy issues. Although the Spam Act applies to any spam regardless of content, a significant portion of the unwanted spam that people dislike contains advertisements for pornography and other products related to sex, illegal gambling schemes, pyramid selling, and misleading or deceptive advertisements. Its method of distribution means that inappropriate material can be sent to minors.
The Spam (Consequential Amendments) Act 2003 (Cth) amended the Telecommunications Act 1997 (Cth) and the Australian Communications Authority Act 1997 (Cth) to enable effective enforcement.
The Spam Act is enforced by the Australian Communications and Media Authority (ACMA), a Commonwealth statutory authority responsible for the regulation of radio and television broadcasting, telephone communications, and the internet.
For further information on internet fraud see the AFP website: www.
afp.gov.au/national/major_
fraud/internet_scams
legal links
Figure 8.6 People can be betrayed by spam. Senders can elicit money from gullible victims.
1 Go to these two websites and find definitions for the scams listed below:
www.scamwatch.gov.au/content/
s
index.phtml/tag/internetScams www.thebestscams.com/
s
– Online auction and shopping scams
– Domain name renewal scams – Spam (junk mail) offers – Free offers on the internet – Modem jacking
– Spyware and key-loggers – Ringtone scams
– Up-front payment scams 2 Make a list of the other types of
internet scams.
Figure 8.7 Despite legislation against spam, it still proliferates.
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The individual and the law
1 Go to the ACMA website and find out how to make complaints about spam:
www.acma.gov.au/
2 Go to the ACMA website and outline the various ways in which spam is being fought in Australia:
www.acma.gov.au/WEB/STANDARD/
pc=PC_310308