Explanatory Notes: Misuse of Digital Technologies and Services Consolidation
Criminal Offences (Misuse of Digital Technologies and Services Consolidation) Bill
The Bill has been drafted as a consequence of the dramatic rise in digital crime over the last 20 years. A prosecution for an on line or digital offence could be made using over 30 statutes. This is extremely confusing and daunting for Police officers trying to investigate a complaint. Indeed, there is real concern that officers do not understand the nature, dangers and risks of digital crime. It is unclear whether certain activities involving watching, spying and listening break existing laws. Many Criminal Justice staff are uncertain if social media abuse and trolling constitute criminal activity. Industry is not properly regulated and Police Officers sometimes claim that co-operation with investigations is not always forthcoming
The Bill consolidates existing powers in one place, updates the law to take into account technological developments, places duties on social media providers and introduces mandatory training for Criminal Justice professionals.
*In 1990, the Computer Misuse Act was passed. Its purpose was:
*To prevent unauthorised access to computers or data (hacking)
*To prevent unauthorised access with intent to commit or commission offences
*To prevent unauthorised acts with intent to impair the operation of a computer including circulating viruses, deleting files or inserting a Trojan to steal data.
In the last 25 years the number of convictions under the Act has been very low. From 1990 to 2006, 134 offenders were found guilty, this is less than 1 per month. An analysis of the most recent figures by the Digital-Trust show that there has been little improvement. Between 2007 and 2013 there were 128 findings of guilt or 1.5 each month. The act has been amended on 2 occasions put with little impact on convictions. This Bill gives the Police greater assistance to investigate and gather evidence.
This clause offers a definition of both digital crime and digital abuse. A digital crime involves a device to a significant degree. Such a device would be used either to commit or aid a crime. The devices would include phones, computers, cameras and consoles. With digital abuse a device would be used to abuse a person and be associated with public protection issues. The illegal activities might include: harassment, stalking, hate crime or sexual and financial grooming.
CLAUSE 2 and 3
These clauses place a duty on the Attorney General to consolidate the 32 Acts of Parliament which contain provisions that could result in a prosecution for a digital offence. The relevant sections of each statute are identified in clause 3.
CLAUSE 4 to 7
In consolidating the statutes the Attorney General has a responsibility to consult with relevant bodies and community organisations. One of those responsibilities will be to identify any other statutes which contain sections which could be used to mount a prosecution. These clauses also ensures that the task is completed in12 months and that guidance is issued to the Police and Crown Prosecution Service.
CLAUSE 8 to 16
These clauses identify grey areas where digital activity is clearly unacceptable but where the Police are uncertain how to charge or which statute to use. This includes using devices to locate a person, installation of webcams without good reason, taking images of a person without legitimate purpose and restrictions on the sale of spyware to minors. This section also gives the Information Commissioners Office powers to dismiss repeat Freedom of Information requests if the purpose is to groom or harass an individual. The Clauses make it an offence to send a person goods or order services without the person’s permission where the activity causes distress. It also creates an offence of creating a false persona on line without lawful reason.
CLAUSES 17 and 18
These clauses further define abusive content. It becomes an offence to post images of a person on line without the person’s permission if the intent of the posting is to humiliate or put the subject at risk of harm. In determining harm the Police shall have regard to the impact the behaviour would have had if it occurred off line.
This clause deals with on line abuse, threats and persistent abusive activity known as trolling. An offence is committed if the abuse is either discriminatory, threatening or causes distress or anxiety to a victim. Causing distress or anxiety is a key test in determining whether stalking or coercive control in a domestically abusive situation has occurred.
This clause gives the courts the power to impose restraining orders on anyone who engages in surveillance, monitoring or digital abuse. In order to enhance compliance a court can attach conditions to an order such as its length, which could be for life, a limit on the nuber of phones or computers the subject might own and stopping the person taking out civil actions against the victim without leave of a high court. The Court has the power to warn the subject of an order that multiple breaches risk a custodial sentence.
CLAUSES 21and 22
These clauses would ensure that educational establishments timetables sessions to warn students of the risks posed by social media. They establish a student helpline to advice on risks and personal safety. They also give the Home Office powers to make sure that the Police are trained in digital crime and its consequences and how to gather evidence.
CLAUSES 23 and 24
These Clauses deal with the duties of Providers to regulate and maximise personal safety. They introduce a code of professional standards, make provision for safety impact assessments, make it mandatory to inform the Police of serious threats of harm and make it a duty for providers to adhere to minimum access ages for users.
This clause empowers Secretaries of state to issue guidance. They should cover:
- Emerging Digital criminal activity
- Reflect action that would be taken had the behaviour occurred off line
- Ensure best Quality standards are followed
- Ensure that Employers be aware that they should not monitor Employee’s accounts covertly
- Give advice on the serious of abuse to inform charging decisions and
- Develop risk assessment tools to enable the Police to prioritise complaints.
This clause contains the short title of the Bill, its commencement and date and its jurisdiction.
Harry Fletcher Director Digital –Trust March 2016