Dialogue: Anti-hacking bill sends clear signal

By PAUL SWAIN*

Concerns have been raised about the Crimes Amendment (No 6) Bill, one of the purposes of which is to make hacking illegal in New Zealand.

The law and order select committee has returned the bill to Parliament. It still needs to be debated and voted on before becoming law.

It is vital for every New Zealander who owns a computer that hacking is made illegal. We need to send a strong message that hacking is not cool. It is a serious crime.

If it proceeds, this legislation would make accessing a computer system without authorisation a criminal offence punishable by a maximum of two years' imprisonment.

Two issues of concern have been raised: denial of service and dealing in or possessing software to commit a crime.

First the issue of denial of service. The bill imposes up to seven years' imprisonment on anyone who intentionally or recklessly, and without authority causes any computer system to fail or deny service to any authorised users.

The key words here are "intentionally or recklessly". This does not mean an innocent accident. Criminal recklessness requires that someone deliberately and unreasonably takes a risk knowing the possible outcome.

When a computer programme with "bugs" in it causes a computer system to fail or a person sends a virus without knowing he or she has, this would not be regarded as criminal behaviour unless it were done intentionally or recklessly.

Under these circumstances, it is unlikely it would be considered criminal.

Another concern is about the part of the legislation that deals with possessing software to commit a crime.

Some have taken this to mean that if people have any sort of software or information in their possession which could, for instance, be used to access a computer system without authority, they would be guilty of this offence. But again the key here is intent.

Any prosecution under this offence will only succeed if "intent to commit a crime" can be proved beyond reasonable doubt. Simply possessing such software does not imply that "bad intent can't be far away" - the offence requires the police to prove a much higher standard.

Most media commentators have been critical of New Zealand for not having specific computer offences - especially since computer offences were first proposed in a 1989 Crimes Bill.

Our present law does not cover all the types of unauthorised access to a computer that the offences in the bill will cover.

We need legislation that details specific computer offences to help make clear to the public that this type of conduct is considered criminal.

* Paul Swain is Minister of Commerce, Communications and Information Technology.