Pearse Ryan, Tom Browne and Sarah McDermott consider the impact of a recently introduced Bill and summarise its most noteworthy aspects
On 15 January 2016 the Irish Government introduced the long awaited Criminal Justice (Offences Relating to Information Systems) Bill 2016. The purpose of the Bill is to give effect to the provisions of Directive 2013/40/EU of 12 August 2013 on attacks against information systems (the deadline for transposition of which was August 2015).
Currently, the law on cybercrime in Ireland is contained in a number of Acts, namely the Criminal Damage Act 1991, the Criminal Justice (Theft and Fraud Offences) Act 2001 and the Criminal Justice Act 2011. Apart from the 2011 Act, which was introduced for particular purposes in support of An Garda Siochána (the national police force) investigations, the substantive law in Ireland, set out in the 1991 Act and 2001 Act, is elderly, contains notable omissions and is seldom used as the basis for prosecution. The substantive law has been discussed previously.
The 2011 Act was introduced primarily to facilitate Garda access to information and documentation in the course of an investigation. While it is an effective piece of legislation (which again has been the subject of previous discussion), it is largely procedural in nature. Consequently, it has been 15 years since legislation was enacted which addressed cybercrime specifically or any substantive offences in the area were introduced. In the context of the technological developments of the last 15 years, the Bill is necessary to update the law in the area and aims to offer greater protection to modern information and communication systems.
The Bill will remove cybercrime entirely from the remit of the 1991 Act, amending the 1991 Act to remove all references to data and cybercrime offences. The Bill also proposes to introduce a new definition of data, replicating the definition set out in the Directive. Data is defined as:
'any representation of facts, information or concepts in a form capable of being processed in an information system, and includes a programme capable of causing an information system to perform a function'.
Currently, cybercrime offences in Ireland centre on actions involving a 'computer', which is undefined in the legislation, effectively allowing law enforcement, through the tools of statutory interpretation, to keep pace with technological developments. The Bill introduces the concept of an 'information system' and defines that phrase, again reproducing the definition in the Directive, as:
'(a) a device or group of interconnected or related devices, one or more than one of which performs automatic processing of data pursuant to a programme, and
(b) data stored, processed, retrieved or transmitted by such device or group of devices for the purposes of the operation, use, protection or maintenance of the device or group of devices, as the case may be.'
This definition is arguably more suitable to a computer based information system or computer information system than the potentially broader information system.
New Substantive Offences
Section 3 of the Bill will create the offence of interference, by way of hindering or interruption, with an information system without lawful authority. This offence addresses for the first time in Irish law denial-of-service attacks on information systems, which prevent legitimate users from accessing information or services which rely on the affected computer or network. The express omission of DOS-type attacks is one notable omission from the scope of existing legislation.
The Bill further will introduce, in s 5, the offence of intentionally intercepting any transmission of data, without lawful authority, from or within an information system. It seems quite likely that future prosecution arguments will turn on the meaning of 'lawful authority'.
Section 6 of the Bill will make it an offence to produce, sell, procure for use, import, distribute, or otherwise make available the tools that can be used to commit the offences set out in the Bill, for the purpose of the commission of an offence under the Bill. It is the intention of the Directive that such tools could include malicious software, including those able to create botnets, used to commit cyber-attacks.
There are transnational jurisdictional issues, which feature in almost all substantive cybercrimes but which are not covered in this article.
Repeals and Amendments
Under s 5 of the 1991 Act, which will be repealed by the Bill, it is an offence to operate a computer with the intent of accessing data, even if the data is not in fact accessed. Section 2 of the Bill steps into the void created by the repeal of s 5, creating the offence of intentionally accessing an information system without lawful authority. Of course, in practice, proving intention can be difficult.
Section 4 of the Bill addresses the interference with data on an information system without lawful authority, including the intentional deletion, damaging, alteration or deterioration of data on an information system. The Bill will repeal the constituent parts of s 2 of the 1991 Act, which provided for the offence of damaging data, and s 4 of the Bill mirrors the effect of the repealed provisions.
The Bill will provide, in s 7, that a District Court judge may issue a search warrant for the search of any place where a member of An Garda Siochána has reasonable grounds for suspecting that evidence relating to the commission of an offence under the Bill may be found. Notably, s 7 will further provide that failure to comply with a requirement to give certain information to the member acting under the authority of the search warrant, including giving any password, encryption key or code necessary to access information held on a computer, is an offence. These measures to ensure compliance are in addition to the provisions of the 2011 Act.
A person convicted of an offence under ss 2, 4, 5 or 6 will be liable on summary conviction to a €5,000 fine or imprisonment for a term not exceeding 12 months, or both, and on conviction on indictment to an unspecified fine, or imprisonment for a term not exceeding five years, or both.
An offence under s 3 carries a penalty of a €5,000 fine or imprisonment for a term not exceeding 12 months or both on summary conviction, and on conviction on indictment, to an unspecified fine or imprisonment for a term not exceeding 10 years or both.
A person convicted of an offence under s 7 will be liable on summary conviction to a €5,000 fine, or imprisonment for a term not exceeding 12 months, or both.
The Bill further provides that, in imposing a sentence in respect of s 3 or 4, the Court may regard as an aggravating factor the fact that the offence was committed by misusing the personal data of another person, with the aim of gaining trust of a third party, thereby causing prejudice to that other person. This reference to social engineering is a noteworthy extension of the law.
As the Bill was only introduced on 15 January 2016, it has not yet reached the second stage in the introduction of legislation, and as such has not yet been debated in the Dáil. The Dáil has not indicated when this second stage might take place. There are five stages in total through which a bill makes the passage from bill to act, with no upper limit on how long this process can take. Given that as we write this a general election has recently taken place, which has produced an inconclusive result, it may be some time before a Government is formed and the legislative process continues.
The Bill is a welcome updating of the law on computer crime and computer aided crime in Ireland. It remains to be seen when the Bill will be enacted and what changes it will undergo as it winds its way through the legislative process.
Pearse Ryan is a partner in the Technology & Innovation Group at Arthur Cox, Dublin. Sarah McDermott is a trainee in the Group. Tom Browne is an Associate in the Litigation and Dispute Resolution Group at Arthur Cox, specialising in white collar crime.