CHAPTER 1

1. INTRODUCTION AND BACKGROUND

1.1 During 1997 the Commission decided to include an investigation into computer related crime in its programme. A project committee was appointed to assist the Commission in this investigation.

1.2 A project to investigate the admissibility of computer generated evidence has already been commenced with by the Commission (Project 95). This project will be proceeded with by the project committee appointed for the project on computer related crime. The aspects of the admissibility of computer generated evidence relating to criminal matters will be considered in the course of the investigation into computer related crime. Thereafter the civil aspects of the admissibility of computer generated evidence will be further investigated.

1.3 Computers and the software used on computers are designed to perform a multitude of tasks. These include the storage of information and the performing of a range of functions with such information which can be aimed at, among others, altering the meaning thereof or at producing a totally new product. The ability of computers and software to perform these tasks can naturally be abused for purposes which are unlawful or which are so unacceptable to society that there can be said to be general consensus that they should be unlawful.

1.4 The project committee realises that the scope of an investigation into computer related crime is very wide. For this reason the committee set six objectives which it aims to achieve during the course of the investigation. These are:

1.4.1 to investigate the criminalisation of unauthorised access to computers as well as the unauthorised modification of computer data and software applications which includes the planting of a virus for example,

1.4.2 to investigate the possibility of providing for the procedural aspects associated with the investigation and prosecution of the above-mentioned offences,

1.4.3 to investigate the use of computers to commit offences such as theft and fraud,

1.4.4 to investigate offences committed by means of the Internet,

1.4.5 to investigate matters relating to encryption in order to protect information, and

1.4.6 to investigate the continuing education of the investigating and prosecuting authorities as well as the judiciary to understand and correctly apply the legislation which may be forthcoming from the this investigation.

1.5 Because of the wide scope of the investigation as outlined above the committee decided to follow an incremental approach to this investigation. The first stage, which will be the topic of this issue paper, will explore two questions: the first is whether unauthorised access to computers and the unauthorised modification of computer data and software applications can be dealt with in terms of our criminal law and if not, whether it is desirable that these activities be criminalised. The second is the desirability of introducing procedural provisions aimed at enhancing the investigation and prosecution of these activities.

1.6 The purpose of this Issue Paper is twofold: on the one hand, to elicit responses in respect of the issues identified and the options raised herein, and on the other hand, to determine whether the Commission is aware of all the issues pertaining to unauthorised access to computers and the unauthorised modification of computer data and software applications and the related procedural matters and whether there are other options of reform in respect of any of these issues which should be considered. Respondents are therefore invited, not only to comment on the issues and options discussed in this paper, but also to indicate whether they agree with the scope of the investigation and the according of priorities to the various objectives as set out above and to raise other issues and option which may be relevant to the subject matter thereof.

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