Lawmakers get draft law to amend Electronic Crimes Act

BASSETERRE, ST. KITTS, JUNE 13TH 2012 (CUOPM) – Lawmakers in St. Kitts and Nevis have received draft legislation which seeks to amend the Electronic Crimes Act of 2009, to facilitate the harmonization of the Act by bringing it in line with the international standards so as to ensure that existing offences and laws respecting the investigative powers of the police and admissibility of evidence in judicial proceedings adequately apply in order to deal with the novel and sophisticated forms of criminal activity.

The Electronic Crimes (Amendment) Bill, 2012, which stands in the name of Prime Minister and Minister with responsibility for the Police and Defence Force, the Rt. Hon. Dr. Denzil L. Douglas, will see a new definition of “intercept” so as to bring it in line with international standards.

Clause 4 of the Bill seeks to amend section 3 of the Act so that jurisdiction is based on the principle of nationality. Currently that section makes provision for unlimited jurisdiction with regard to acts committed outside Saint Christopher and Nevis which would be very difficult to enforce.

Clause 5 of the Bill seeks to replace section 4 of the Act in order to create clear offences relating to illegal access and illegal remaining.

Thus, the Clause seeks to ensure that acts committed in excess of a lawful excuse or justification are criminalized. Further, the Clause seeks to create the offence of illegal remaining, which offence is intended to target persons with a right of access to a computer system or part of a computer system by virtue of the nature of their work who access the computer system in accordance with the authorization and remain logged in the computer system contrary to the authorization with intent to commit ulterior offences to the detriment of their employer.

Further, the Clause seeks to consolidate the provisions of section 12 of the Act into Clause 4 because of the similarities.

Clause 6 of the Bill seeks to amend section 5 of the Act by inserting immediately before the word “data” wherever it appears in subsection (1) thereof the word “computer.’

Clause 7 of the Bill seeks to amend section 6 of the Act in order to create the offence of hindering or interfering with a computer system which is exclusively for the use of critical infrastructure operations; or which is not for the use of critical infrastructure operations, but which is used in critical infrastructure operations; whereby the conduct of the person affects the use or impacts the operations of critical infrastructure.

Clause 8 of the Bill seeks to amend section 8 of the Act in order to provide for possession of devices with the intent that such devices are to be used for the purpose of committing an offence. This is intended to bring the provisions of that section in line with international standards.

Clause 9 of the Bill seeks to amend section 9 of the Act in order to criminalise computer related fraud.

Clause 11 of the Bill seeks to amend section 14 of the Act by defining communication that constitute a threat or is menacing in character.

Clause 12 of the Bill seeks to introduce four new sections, namely, sections 14, 15, 16 and 17 in order to make provision for new offences which are not covered by the Act.

First, the Clause seeks to create the offence of computer related forgery in order to target persons who knowingly, without lawful excuse or justification or in excess of lawful excuse or justification, (a) make an input; (b) alter; (c) delete; or (d) suppress computer data; resulting in inauthentic computer data with intent that it be considered or acted upon for legal purposes as if it were authentic, regardless of whether or not the computer data is directly readable and intelligible.

Secondly, the Clause seeks to create the offence of data espionage in order to target a person who, knowingly, without lawful excuse or justification or in excess of a lawful excuse or justification, obtains for himself or herself from another computer data which are not meant for him or her and which are specially protected against unauthorized access.

Thirdly, the Clause seeks to create the offence of identity related crimes in order to target a person who knowingly, without lawful excuse or justification or in excess of a lawful excuse or justification, uses a computer system at any stage of an offence to transfer, possess, or use a means of identification of another person with intent to commit, aid or abet, or in connection with, any unlawful activity that constitutes a crime.

Fourthly, the Clause seeks to create the offence of spam in order to target a person who knowingly, without lawful excuse or justification, (a) initiates the transmission of multiple electronic mail messages from or through a computer system; (b) uses a protected computer system to relay or retransmit multiple electronic mail messages, with intent to deceive or mislead users, or any electronic mail or internet service providers, as to the origin of such messages; or (c) materially falsifies header information in multiple electronic mail messages and intentionally initiates the transmission of such messages.

Clause 13 of the Bill seeks to amend section 15 of the Act in order to enhance the investigative powers of the police.

Clause 15 of the Bill seeks to introduce three new sections, namely, sections 23, 24, and 25.

First, the Clause seeks to introduce a new section relating to expedited preservation of computer data in order to facilitate a police officer who, if satisfied that there are grounds to believe that computer data which is reasonably required for the purposes of a criminal investigation is particularly vulnerable to loss or modification, may, by written notice given to a person in control of the computer data, require the person to ensure that the computer data specified in the notice is preserved for a period of up to seven days as specified in the notice. Such period may be extended beyond the seven days if, on an ex parte application, a Magistrate authorizes an extension of the same for a further specified period of time.

Secondly, the Clause seeks to introduce a new section relating to use of forensic software in order to facilitate police officers to use forensic software in an investigation concerning an offence where there are reasonable grounds to believe that essential evidence cannot be collected by applying other provisions of the Act but is reasonably required for the purposes of a criminal investigation.

The use of this method will have to be approved by the judge upon application by a police officer. Once the approval is given then a police would be able to utilize a remote forensic software with the specific task required for the investigation and install it on the suspect’s computer system in order to collect the relevant evidence.

Thirdly, the Clause seeks to introduce a new section relating to the disclosure of details of an investigation in order to ensure that an internet service provider who receives an order related to a criminal investigation that explicitly stipulates that confidentiality is to be maintained or such obligation is stated by law complies with such requirement, otherwise should the internet service provider intentionally, without lawful excuse or justification or in excess of a lawful excuse or justification, discloses the details of the investigation, then such provider will face legal consequences.

Clause 17 of the Bill seeks to introduce a new section that empowers the Minister to make regulation in order to give effect to the provisions of the Act.

The Electronic Crimes (Amendment) Bill, 2012 is now available for comments and suggestions from the general public and interest groups and is available on line at www.cuopm.com

Comments and suggestions can be sent to the Legal Department in the Attorney General’s Office, Government Headquarters, Church Street, Basseterre or email attorneygeneral@gov.kn.

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