The Major Organised Crime and Anti-Corruption Agency (MOCA) is seeking an expansion of the activities covered under the five-year-old Cybercrimes Act which are being reviewed.
In a submission to yesterday’s meeting of the joint select committee reviewing the Act, MOCA warned that, while improvement in information and communication technology (ICT) systems have transformed legitimate businesses, criminals have discovered that cyberspace can provide new opportunities and multiply benefits for illicit business activities.
The MOCA submission, which is among the first to be aired by the committee and was presented at the meeting at Gordon House by its legal officer, Nigel Park, also noted that, in recent times, it has been observed that conventional criminals are using ICT to perpetrate illegitimate activities.
“The Internet offers new means of committing old crimes, such as fraud, and offers new vulnerabilities relating to communications and data that provide attractive targets that are easily exploited by these criminals,” he pointed out.
The submission read that, while the evolution of cybercriminals now requires the recognition of computers as “instrumentalities involved in the commission of offences”, and at varying stages in the process are a tool, a target, or a repository of the memory of crimes committed, “any legislation seeking to treat with the misuse of computers, data, and its attendant functionalities must be elastic enough to be capable of accommodating current as well as reasonably anticipated advances in technology”.
It stated that the Cybercrimes Act, 2015 has quite ably demonstrated its capacity for treating with traditional offences concerned with unauthorised access, modification, interception, or obstruction of computers, their data, programmess or functions, but suggested that it is critical that this foundation be utilised to allow for treatment of the multiple variants in traditional offences arising with alarming frequency, as well as new crime types which the criminal law in Jamaica cannot adequately treat with.
MOCA singled out the issue of recipients who face embarrassment from malicious communication in cyberspace to be added to Section 9 of the current 2015 Cybercrimes Act.
Section 9 (1) of the Act states that a person who commits an offence by using a computer wilfully with intent to send to another person any data (whether in the form of a message or otherwise) that is obscene, constitutes a threat, or is menacing in nature; and intends to cause, or is reckless as to whether the sending of the data causes annoyance, inconvenience, distress, or anxiety to that person or any other person, can be fined not exceeding $4 million or imprisonment for a term not exceeding four years, or both, by a parish judge if the person is a first offender.
“The more modern formulations of this offence found in other jurisdictions treat these permutations disjunctively, rather than conjunctively as is done in the Cybercrimes Act,” Park said.
“An amendment to make the criterion disjunctive will allow for a wider category of malicious communications to become criminalised, whilst simultaneously lowering the standard of proof required, thereby making them easier to prosecute,” he stated.
Park made a comparison to the contemporary provision in the Barbados Computer Misuse Act, 2005, which introduced the element of recklessness in the conduct of the sender, as it relates to the “annoyance, inconvenience, embarrassment, distress or anxiety that the sender causes to the recipient or intended recipient of the communication”.
“The first distinction that is seen as it relates to our offence is that they’ve made these elements disjunctive,” he said.
He also noted that the subject of the malicious communication should be included in Section 9, where it is viewed as an aggrieved party who is capable of being a complainant.
In response to the recommendations, Opposition spokesman on National Security Peter Bunting suggested that the committee look beyond making them disjunctive, but examine if they are sufficiently broad, “because this area is most commonly abused in today’s circumstances and is likely to become more prevalent”.
Bunting also suggested that additional sub-clauses be made, looking at “something that attacks a person’s reputation in a really vicious way”.
“People feel like they can do that, because things they would not risk doing outside cyberspace they feel they can do it in cyberspace, and I don’t think they should be allowed to get away scot-free,” he added.
Minister of Science, Energy and Technology Daryl Vaz, who chairs the committee, said he agreed with the sentiments.
“I am 100 per cent for that, and I think it’s an area that needs to be looked into. The fact of the matter is that even the method of recourse takes so long in the judicial system,” he said.