1. Use of community internet facilites for crime
A community based internet facilitator or an organisation offering internet access to members of the community should be aware of the criminal purposes to which such facilities may be put by users. The crimes below are discussed in more detail in the Cyberspace Crime Fact Sheet.
2. What is hacking and cracking?
Hacker and cracker are terms used to describe people who intentionally seek to access computer systems or networks with dishonest intentions.(1) A cracker may access a system with destructive or malicious intentions (eg to alter data or spread a virus) whereas a hacker is generally motivated by curiosity.(2)
3. Hacking and cracking - unauthorised access and computer trespass offences
Hackers and crackers may be criminally liable if they access, or access and continue to examine certain data held on a computing system.(3) Cracking may also involve damage to data and fraud.
Be aware of the following examples of unauthorised access:
Asynchronous attack: operating system deliberately confused, tasks disoriented or isolated, allowing a window for misuse.
Eavesdropping: collection of transmissions from computer including tapping, bugging, capture of signals from peripherals.
Masquerading: authorised user is impersonated by stolen password or access device.
Piggybacking: unauthorised terminal connected to authorised line established after identity verification and used when authorised terminal not in use.
Scanning: used to discover valid passwords, credit card numbers and other sensitive data.
Skimming: illegal duplication of valid access devices.
Superzapping: unauthorised use of troubleshooting programs, for example, to search computer and send sensitive data back to programmer.
Trapdoors: intentional unexecuted or incomplete instructions and unused command parameters inserted in software code to facilitate compromise of the system at a later date.
Trojan horses: computer program modified to include hidden system commands so that malicious or fraudulent instructions are executed when a legitimate program is run. Viruses are usually inserted this way.
The above practices would constitute computer trespass and the unauthorised access of data under Commonwealth, State and Territory(4) law.(5)
The Commonwealth legislation is concerned with Commonwealth data, being data stored in a Commonwealth computer or on behalf of the Commonwealth.(6) For example, a person who intentionally and without authority obtains access to Commonwealth data is guilty of an offence.(7)
The Commonwealth legislation prohibits a person from obtaining access to Commonwealth data (intentionally and without authority), being data the person knows or ought reasonably to know relates to:(8)
(a) the security, defence or international relations of Australia;
(b) confidential sources of information relating to the enforcement of Australian criminal law;
(c) the protection of public safety;
(d) the personal affairs of any person;
(e) trade secrets;
(f) records of a financial institution; or
(g) commercial information, the disclosure of which could cause an advantage or disadvantage to any person.
4. Viruses - damaging data and impeding access to computers
Software, email attachments and files utilising macros can contain viruses that may infect and damage computers and networks. Viruses infect programs, data and systems. Each run of program (including transfers of corrupted data) spreads the infection further. Be aware of the following viruses:
Data diddling: deliberate entry of inaccurate or misleading data into program.
Logic Bombs: computer operating system will execute unauthorised functions on the happening of a trigger event, for example, a calendar day, a missing name on a payroll list.
Salami technique: money amassed by systematic debiting of small amounts from various sources and diversion to another account for withdrawal.
Worms: program designed to replicate itself repeatedly until all system space is taken up and system crashes.
The above viruses would constitute the offence of altering or impairing information stored on a computer, or impeding access to a computer.(9)
For example, New South Wales crimes legislation prohibits a person from intentionally and without lawful authority, destroying, erasing or altering stored data, or inserting data into a computer, or interfering with, or interrupting or obstructing the lawful use of a computer.(10)
5. Theft of Data
It is undecided whether there can be theft of computer data. An intruder into a computer system who dishonestly appropriates information is likely to be charged with unauthorised access or computer trespass, rather than theft.
The Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) provides that a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently depriving that person of the property, and the property belongs to a Commonwealth entity.(11)
6. Computer Fraud
Fraud in the off-line environment generally involves deception through the use of a tangible object, such as a created document. In cyberspace, however, fraud may be committed through the use of digital technology without the need for any such object.
7. Attempt
In all Australian jurisdictions, the attempt to commit an offence constitutes a separate offence.(12) To be guilty, an offender must intend to commit the offence and take steps which go beyond mere preparation in pursuance of their intention.
An offender may be criminally liable for an attempt even though circumstances unknown to them make it impossible for them to complete the offence.
The penalties applying to attempt offences differ between jurisdictions.
8. Incitement
A person who incites another person to commit an offence may themselves be guilty of a criminal offence, even if the offence incited is not committed. Inciting may involve urging, requesting, authorising or encouraging the commission of an offence.
For example, a person who urges the commission of an offence is guilty of incitement under Commonwealth crimes legislation if the person intends the offence incited to be committed.(13) The person may be guilty even if the offence incited is impossible.
Any mode of encouragement can be used to incite an offence. For example, a person may incite another person to commit an offence by publishing a notice on a site that urges, requests or encourages others to commit a crime or doing the same by email.
The maximum penalty for incitement depends upon the maximum penalty for the offence incited. The precise elements of the offence of incitement, and the applicable penalties, vary between jurisdictions.(14)
9. Participation in the commission of an offence
In all Australian jurisdictions, a person who directly or indirectly participates in the commission of an offence, with the requisite mental element and without a relevant defence, is guilty of that offence.(15)
The Australian Capital Territory Crimes legilsation, for example, states that a person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of an offence shall be deemed to have committed that offence and shall be punishable, on conviction, accordingly.(16)
A person's presence at the scene while an offence is being committed may amount to aiding or abetting if, in the circumstances of the case, that person's conduct encourages or assists the principal offender to commit the offence.
10. Possession of child pornography
Possession of child pornography cached on a personal computer as a result of an internet browsing session may constitute an offence under State and Territory law.
For example, in NSW, a person who has in his or her possession any child pornography is guilty of an offence which carries a significant penalty, 2 years imprisonment or both.(17) Child pornography is material (includes any form of recording from which a visual image, including a computer generated image, can be produced) that is refused classification or would, if classified, be refused classification by the Office of Film and Literature Classification Board on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.
Property in a persons custody or knowingly in the custody of another person is considered to be possession.(18)
Other relevant Articles on this site:
Telecommunications law
Internet access agreement
Link or frame a website
Website hosting agreement
Trade practices and consumer protection
Other relevant Fact Sheets:
Cyberspace Crime
Telecommunications (long version)
Telecommunications (short version)
End Notes
1. See O Akindemowo, "Computer Crime - Telecommunications and Internet Abuse" in Information Technology Law in Australia, 1999 LBC
2. Ibid
3. For example, Crimes Act 1914 (Cth), section 76B (1), (3)
4. With the exception of the Northern Territory
5. Crimes Act 1914 (Cth), section 76B;
Summary Offences Act 1966 (Vic) section 9;
Crimes Act 1900 (NSW) section 309;
Summary Offences Act 1953 (SA) section 44;
Crimes Act 1900 (ACT) section 135J;
Criminal Code Act Compilation Act 1913 (WA) section 440A;
Criminal Code Act 1899 (Qld) section 408D(i);
Criminal Code Act 1924 (Tas) section 257D
6. Crimes Act 1914 (Cth), Part VIA
7. Ibid section 76B (1)
8. Ibid section 76B (2) (b)(i) to (viii)
9. Summary Offences Act 1966 (Vic) section 9;
Crimes Act 1900 (NSW) section 310;
Summary Offences Act 1953 (SA) section 44;
Crimes Act 1900 (ACT) section 135K;
Criminal Code Act 1924 (Tas) section 257C
10. Crimes Act 1900 (NSW) section 310
11. Criminal Code (Cth) section 131.1
12. Criminal Code (Cth) section 11.1;
Crimes Act 1900 (ACT) section 347;
Crimes Act 1900 (NSW) section 344A;
Criminal Code (NT) sections 277-279;
Criminal Code Act 1899 (Qld) sections 535-538;
Criminal Law Consolidation Act 1935 (SA) sections 270a-270ab;
Criminal Code Act 1924 (Tas) section 299;
Crimes Act 1958 (Vic) sections 321M, 321O-P;
Criminal Code Act Compilation Act 1913 (WA) sections 552, 554-555A
13. Criminal Code (Cth) section 11.4
14. Criminal Code (Cth) section 11.4;
Crimes Act 1914 (Cth) section 7A (a);
Crimes Act 1900 (ACT) section 348;
Criminal Code Act 1924 (Tas) section 298;
Crimes Act 1958 (Vic) sections 321G-L;
Criminal Code Act Compliation Act 1913 (WA) sections 553, 555A.
The common law offence has been retained in New South Wales and South Australia
15. Crimes Act 1914 (Cth) section 5;
Crimes Act 1900 (NSW) section 351;
Criminal Law Consolidation Act 1935 (SA) section 269;
Crimes Act 1958 (Vic) sections 323, 324;
Crimes Act 1900 (ACT) section 345;
Criminal Code (NT) section 12;
Criminal Code Act 1899 (Qld) section 7;
Criminal Code Act Compilation Act 1913 (WA) section 7;
Criminal Code Act 1924 (Tas) section 3
16. Criminal Code (Cth) Section 11.2
17. Crimes Act 1900 (NSW) Section 578B
18. Crimes Act 1900 (NSW) Section 7