Phorm and Computer Misuse Act

[Clive D. W. Feather]

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In article <47E39E2C.8080107@pmsommer.com>, Peter Sommer 
<peter@pmsommer.com> writes
>One of the difficulties you must contend with is what CMA calls the 
>"requisite intent". Thus in section 3:
[...]
 >It would not be impossible for a prosecutor to prove requisite intent 
 >but in practice it might be very difficult because Phorm and/or the ISP 
 >could say that their intentions did not fulfil any of the three 
 >conditions.

Only in England. In Scotland, section 3 says:

3(1) A person is guilty of an offence if
(a) he does any unauthorised act in relation to a computer;
(b) at the time when he does the act he knows that it is unauthorised; 
and
(c) either subsection (2) or subsection (3) below applies.

(2) This subsection applies if the person intends by doing the act
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in any 
computer; or
(c) to impair the operation of any such program or the reliability of 
any such data; or
(d) to enable any of the things mentioned in paragraphs (a) to (c) above 
to be done.

(3) This subsection applies if the person is reckless as to whether the 
act will do any of the things mentioned in paragraphs (a) to (d) of 
subsection (2) above.

(4) The intention referred to in subsection (2) above, or the 
recklessness referred to in subsection (3) above, need not relate to
(a) any particular computer;
(b) any particular program or data; or
(c) a program or data of any particular kind.

(5) In this section
(a) a reference to doing an act includes a reference to causing an act 
to be done;
(b) "act" includes a series of acts;
(c) a reference to impairing, preventing or hindering something includes 
a reference to doing so temporarily.

(6) A person guilty of an offence under this section shall be liable
(a) on summary conviction in England and Wales, to imprisonment for a 
term not exceeding 12 months or to a fine not exceeding the statutory 
maximum or to both;
(b) on summary conviction in Scotland, to imprisonment for a term not 
exceeding six months or to a fine not exceeding the statutory maximum or 
to both;
(c) on conviction on indictment, to imprisonment for a term not 
exceeding ten years or to a fine or to both.

The key difference here is, as far as I can see, that it should be 
easier to show recklessness than intent.

- -- 
Clive D.W. Feather                       | Home: <clive@davros.org>
Tel: +44 20 8495 6138 (work)             | Web:  <http://www.davros.org>
Fax: +44 870 051 9937                    | Work: <clive@demon.net>
Please reply to the Reply-To address, which is:  <clive@davros.org>

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