The Sunday Mail
Toneo Tonderai Rutsito
There has been so much interest in the new ICT policy and the Computer Crime and Cyber Crime Bill, with the debate providing ample evidence of ignorance of our laws.
I wish to give a few critical indicators on cyber crime.
There are various forms of cyber-crimes, which basically entail using a device that can send or receive messages with defamation, bullying, harassment, fraud, terrorism and pornography.
Socially, this is how people see it, but in the technological world, “computer criminals can be youthful hackers, disgruntled employees and company insiders, or international terrorists and spies”.
These criminals become “cyber criminals” when their crimes involve the use of a computer, and “a computer may be the object of a crime”, or in other words, “the criminal targets the computer itself”.
A computer may also be the “subject” of a crime, or in other words, it “is the physical site of the crime, or the source of, or reason for, unique forms of asset loss”. Examples of this type of crime include viruses, logic bombs, and sniffers.
Finally, “a computer may be the ‘instrument’ used to commit traditional crimes like identity theft”.
The other critical part to curbing and controlling cyber crimes rests wholly on the Government’s ability to intercept or tap into the information that is being sent, without violating the basic human rights of its citizens.
However, the right to privacy is a fundamental human right, guaranteed in all major human rights treaties.
The right to privacy is, however, not an absolute right, and the law is applied separately across various countries.
Corresponding laws have always been in existence.
Under the Postal and Telecommunication Act (Chapter 12:05), it is an offence to send through a telephone any threatening message or series of messages that are grossly offensive, annoying, false, indecent, obscene or of threatening character.
Law enforcement agents are empowered to intercept any information through a legal channel, and these are but only limited to: the Chief of Defence Intelligence or his/her nominee; the Director-General of the President’s Department responsible for National Security or his/her nominee; the Commissioner-General of the Zimbabwe Republic Police or his/her nominee; and the Commissioner-General of the Zimbabwe Revenue Authority or his/her nominee.
The same law also orders service providers to strictly comply with such technical requirements as may be specified by the agency to facilitate the interception, and specify the apparatus and other means that are to be used for identifying the communication that is to be intercepted
South Africa has the Interception of Communications and Provision of Communication-related Information Act 70 of 2002, which was amended as Electronic Communications Act 36 of 2005.
It also has Regulation of Interception of Communications and Provision of Communication-related Information Amendment Act 48 of 2008.
The legislation regulates interception of certain communications, monitoring of certain signals and radio frequency spectrums and the provision of certain communication-related information.
It also regulates the making of applications for, and the issuing of, directions authorising the interception of communications and the provision of communication-related information under certain circumstances.
It prohibits the provision of telecommunication services, which do not have the capability to be intercepted.
On common crimes in South Africa’s Cyber Bill, there is prohibition on dissemination of data messages that advocate, promote or incite hate, discrimination or violence.
“ Any person who unlawfully and intentionally – (a) makes available, broadcasts or distributes; (b) causes to be made available, broadcast or distributed; or (c) assists in making available, broadcasts or distributes, through a computer network or an electronic communications network, to a specific person or the general public, a data message which advocates, promotes or incites hate, discrimination or violence against a person or a group of persons, is guilty of an offence.”
However, in the interest of South African citizens’ privacy, the Regulation of Interception of Communications and Provision of Communication-related Information Act prohibits the interception of communication for any other purposes.
The Electronic Communications and Transactions Act ensures protection of personal information obtained via electronic transactions and requires express written permission of the data subject to process information.
The 41-nation Council of Europe drafted the Cyber Crime Convention after four years and 27 drafts. It was adopted by the Committee of Ministers during the Committee’s 109th Session on November 8, 2001.
The convention was opened for signature in Budapest, on November 23, 2001 and 35 countries have signed the treaty, with Albania and Croatia having ratified it.
The Convention on Cyber crime is important international legislation because it binds countries in the same way as a treaty.
Once a large number of states has ratified a treaty, then it becomes acceptable to treat it as general law.
Treaties are the only machinery that exists for adapting international law to new conditions and strengthening the force of a rule of law between states
Both the then United States Presidents Clinton and Bush administrations worked closely with the Council of Europe on the Convention.
US officials believe that it “removes or minimises” the many procedural and jurisdictional obstacles that can delay or endanger international investigations and prosecutions of computer-related crimes.
The Bush administration was given to the Convention’s data preservation approach, which requires the storage of specified data – relevant to a particular criminal investigation and already in a service provider’s possession – for a limited period of time.
It views this provision, currently lacking in many national laws, as key to improving the counter-terrorist capabilities of law enforcement officials worldwide.
Toneo Tonderai Rutsito is the founder and editor-in-chief of TechnoMag, a leading tech-geared magazine. He wrote this article for The Sunday Mail
