Unauthorised access to commercial information, including Internet crime. Chapter 2

• Date: 01 January 2005
• Author: Leani Marlie Van Schalkwyk
• Published date: 01 January 2005
• DOI: 10.10520/EJC74044
• Pages: 12-45

CHAPTER 2

UNAUTHORISED ACCESS TO COMMERCIAL

INFORMATION, INCLUDING INTERNET CRIME

1. Introduction

In this chapter the unauthorised access to personal data is inves-

tigated.

The issue of access touches two levels.The first involves the ques-

tion of how to prevent information from falling into the hands of a

person with unacceptable intentions.The second level concerns the

protection of information from the knowledge of third parties.

Under the first level, computer crime and especially information

crime is considered as well as the problems that prosecutors face

pertaining to the definition of “property”.

The second level of access contentious topics such as data mining,

spam and hacking50 receives attention.

2. Unauthorised access to personal data

The implication attached to the disclosure of information is that it

becomes accessible to another person. The desire to gain unau-

thorised access to computer systems can be prompted by a number

of motives, from simple curiosity to computer espionage.

Access is often accomplished from a remote location along a tele-

communications network. Perpetrators can take advantage of lax

security measures to gain access or by finding loopholes in exist-

ing security measures. They can impersonate legitimate users and

gain access to networks by bypassing passwords.

2.1 First level access: Protect information from misuse

2.1.1 Computer crime51

This aspect deals with the first level of unsolicited access mentioned

above: to prevent information from falling into the hands of a person

with unacceptable intentions.

Since the main perspective adopted in this study originates from

issues concerning the Internet, Internet crime (or cybercrime) as

12

50 For definitions of these terminologies see page 103 for a list of defi-

nitions.

51 Computer crime is also referred to as information technology crime

(IT

-crime), but since the former is embedded in public perception, it

will be used subsequently.

a component of computer crime will receive more attention. It is true,

however that not all research documents make this distinction and

the words “computer crime” in many instances also depict situations

applying to Internet crime.

The history of computer crime dates back to the 1960s when the

first articles on cases of so-called “computer crime” or “computer-

related crime”52 were published in the public press and in scientific

literature. These cases primarily included computer manipulation,

computer sabotage, computer espionage and the illegal use of com-

puter systems.53

To define the concept of computer crime proves to be a mammoth

task. The United Nations Manual on the prevention and control of

computer-related crime54 states that a global definition of computer

crime has not been achieved but that functional definitions are often

proposed. These functional definitions usually only serve a purpose

in the context of the study in which they appear.

In the South African Green Paper on e-commerce55 “cybercrime” is

described as

illegal acts, the commission of which involves the use of an

electronic system, networks, technologies and devices such

as the telephone, microwave and satellite.56

It is functional to make a distinction between “computer crimes”

and “computer related crimes”.The latter requires computers to be

used as tools or targets of the criminal offence, but knowledge of

the workings of a computer is not essential for the successful com-

mission of the offence.Computer crime can thus be regarded as

a criminal offence for which the knowledge of computers is a pre-

requisite for the successful commission of the crime.

Van der Merwe suggests57 that the working definition submitted by

the OECD58 in 1986 is adequate for purposes of discussing the sub-

ject “computers and criminal law”. This definition reads that “com-

puter abuse is considered as any illegal, unethical or unauthorized

13

52 Sieber (1998:19) uses both terms synonymously here.

53 Sieber 1998:19.

54 1994 par. 21.

55 Available at www.polity.org.za/govdocs/green_papers/greenpaper/

56 See Van der Merwe 2003:33 for a detailed discussion on the relevant

definitions proposed by different bodies and authors that does not need

further elaboration here.

57 LAWSA Vol.5 par. 11.

58 The United Nations division “Organisation for Economic Cooperation

and Development”.

behaviour relating to the automatic processing and the transmis-

sion of data”. This definition is also preferred by Professor Sieber

in his study on computer crime commissioned by the European

Commission in 1998.59

A comprehensive definition for computer crime is provided by the

Council of Europe in its report on computer crime:

The input, alteration, erasure or suppression of computer data

or computer programmes, or other interference with the

course of data processing, that influences the result of data

processing thereby causing economic loss or possessory

loss of property of another person, or with the intent of pro-

curing an unlawful economic gain for himself or for another

person.60

Based on this definition a division of five categories of computer crime

can be made:61

• unauthorised access;

•unauthorised use;

• dishonest manipulation;

• computer sabotage, and

• theft of information.62

This definition is functional and wide enough to incorporate hacking

and virus-planting.63

Sieber64 distinguishes between four main parts of computer crime

with subdivisions:

(i) Infringements of privacy

(ii) Economic offences

a. Computer hacking

b. Computer espionage

c. Software piracy and other forms of product piracy

d. Computer sabotage and computer extortion

e. Computer fraud

14

59 Sieber 1998:20.

60 Recommendation No R (89) 9 adopted by the Council of Ministers on

13 September 1989. (Available at http://cm.coe.int/ta/rec/1989/89r9.htm):

245.

61 Van der Merwe 2000:166; 2003:34.

62 See discussion under chapter 2 (2.1.1.2.1).

63 Virus-planting and Trojan horses are not discussed within the context

of this study, but for interest sake it is noted that the Electronic Com-

munications and Transactions Act 25 of 2002 prohibits it in section

86(2). See page 103 for a list of key terms.

64 1998:39.