Model Law

As mandated by Commonwealth Law Ministers, an expert working group (the Group) met in London on July 10-14, 2000 to consider a proposed Model Law for computer and computer-related offences, as well as recommendations for international co-operation in relation to computer crime and associated matters, digital forensic evidence and general recommendations regarding these issues. In analysing the issues, the Group considered material generated in other international fora, as well as existing legislation in various countries. Particular regard was given to the Draft Convention on Cyber-crime prepared by a Committee of Experts on Crime in Cyber-Space, established by the European Committee on Crime Problems of the Council of Europe.1

The Group considered the legal framework necessary to combat computer abuse, outlining the necessary content of a model law.

A. Substantive Offences

The Group recommended that the Model Law should contain the following substantive criminal offences.

1. Illegal access

Offence to intentionally, without lawful excuse or justification2, access the whole or any part of a computer system.

The Group was of the opinion that this offence is central to an effective law to combat computer crime. The offence is important in several respects. It is analogous to an offence of "break and enter" as it involves accessing private "premises" without excuse or justification. Viewing it as such, the offence provides protection against unlawful violations of the privacy rights that attach to computer systems and data. In addition to the direct harm that can be occasioned from this offence, there is also the potential for other damage, intentional and unintentional, arising from the unlawful access. Many recent highly public instances of "computer hacking" illustrate the potential for very serious results arising from such activity. By criminalising this activity, the aim is to prevent not only that harmful conduct in itself but also the possible related damage to computer systems that can be occasioned by the unlawful access. For these reasons, the Group recommended this offence as a key component of any law relating to computer crime.

In considering this offence, the Group deliberately decided to recommend an offence of illegal access without any qualification with respect to the purpose or intent of the access. Consideration was given to additional offences such as access with the intent to obtain information or with intent to commit one of the other offences outlined in the Model Law. However, there was concern that the inclusion of such offences, particularly as aggravated forms of illegal access, could impair the effectiveness of the general access offence. The Group was of the view that the offence of illegal access, in and of itself, should be regarded as a serious offence, irrespective of the purpose of the access. The example was given that accessing the national security or defence system of a country was a serious offence, even without an intention to take information or commit other offences in light of the potential for significant consequences, whether intended or unintentional, occurring as a consequence of the unlawful access.

The Group was of the opinion that the purpose or other circumstances that may aggravate or mitigate the offence should be addressed by way of sentence. Therefore, for this pa...

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