Computer use in on the rise in Barbados and hence the need to enhance the legislative framework. This technology legislation comes some time after the passage of the Electronic Transactions Act in 2001. The legislation can be placed within the context of the increasing use of computers in Barbados and the need to provide adequate protection for electronic information residing on computer systems. The legislation is intended to penalise persons that misuse computers, computer systems and information contained in those systems. The legislation at its core deals with (i) unauthorised access by persons and (ii) abuse by persons that do have authorised access.
Background
This is an elaboration of the criminal law in Barbados to take into account the advances in science and technology that the world is now experiencing. In the United Kingdom for example an attempt was made by lawyers to use existing pieces of legislation such as those dealing with criminal damages and fraud. Eventually it became clear that existing legislation was not enough to cover all the crimes involved in computer hacking.
In an English case individuals, who used unauthorised passwords to access mailboxes without permission were tried under legislation for forgery and counterfeiting. The decision was overturned on appeal to the House of Lords and the prosecution roundly rebuked for trying to “force the facts of the present case into language of an Act not designed to fit them.”
In Barbados there is a clear need to ensure that the appropriate safeguards are put in place for the many computers and computer systems in Barbados. This Government has been enthusiastic about embracing information technology. There are big projects such as the edutech programme, the Smart stream programme to keep account of revenues and expenditures in the public sector, the aseycuda system in the Customs Department, the computerisation of the land tax department, the National insurance department, many government agencies have websites so the people have easier access to web information. Parliament has its own website. Information Communications Technology Policy has now been developed which will encourage the wide use of Internets and Intranets within organisations
The Offenders
In the definition there has not been any attempt to define computer as the technology changes so rapidly that it was determined to be better to frame the Act by its objectives.
The legislation addresses both acts and failure to act by persons.
It covers persons residing in Barbados as well as persons aboard a ship or aircraft registered in Barbados or by a person who is outside of Barbados if the person is a national of Barbados and the offence would also be one in the country where the offence was committed. The Act therefore seeks to ensure that the persons involved in hacking inside Barbados and from outside Barbados are caught by the legislation.
Offenders include those who are not entitled to access the computer information, those who do not have permission to access the information, persons that have exceeded their rights to access the information and persons that have without authority received information.
The Offences
There are several offences that have been identified in the legislation concerning unauthorised access or abuse of access to information including (1) gaining access to the whole or any part of a computer system (2) causing a computer programme be executed (3) using a programme to gain access to data (4) copying or moving a programme or data (5) hindering the proper functioning of a computer system by, for example, preventing the supply of electricity to the computer, corrupting the computer system or adding, deleting or altering computer data (6) interfering with a computer system or a person using a computer system and (7) intercepting by technical means transmissions or information from a computer system.
Recipients are also guilty of an offence
If a person who is not entitled to do so is given access to data or a programme, that recipient is guilty of an offence.
In addition where the person is authorised to receive information but it comes from an unauthorised source that person is also guilty of an offence.
Restricted Computer Systems
There are special provisions and stiffer penalties for what are considered to be “restricted computer systems”. These systems are considered to be critical to the security of the country. Some of the institutions that would have restricted computer systems are:
The Archives Department
The Barbados Defence Force
The Electoral and Boundaries Commission
The Financial Intelligence Unit
The Queen Elizabeth Hospital
The Forensic Laboratory
The Inland Revenue Department
The Royal Barbados Police Force
The Licensing Authority
The National Library Service
Entities providing utility services
The penalty for simple unauthorised access is $50, 000 or five years imprisonment,
Accessing the system with the intent to commit an offence such as destroying or manipulating data results in a fine of $100,000 or seven years imprisonment. It is however a complete defence that access was inadvertent, with no intention of committing an offence.
Child Pornography
The Bill addresses child pornography specifically and makes it an offence to publish, produce or possess pornography on a computer system or a data storage medium for the purpose of publication. This not includes representations of minors but individuals that look like minors.
Malicious Communications
The Bill further addresses those instances where individuals send messages, letters or other communications which cause the recipient or others, annoyance, inconvenience, distress or anxiety. The letters that are covered are those that are indecent, obscene, constitute a threat or are menacing in character to the recipient or others. We have already had situations in Barbados where there is the irretrievable break down of a relationship between a man and a woman that the man would send put the head of the lady in question on the nude body of the woman in question and e-mail it to her workmates. This can now be dealt with under the legislation.
Enforcement
The police are given the necessary powers of search and seizure through the Courts.
The Act also provides that assistance can be rendered by the person who possesses or is in control of the system.
The standard used with respect to the offences is whether the person knowingly or recklessly and without lawful justification or excuse committed the particular offence.
Fines lie between $25, 000 and $200,000, while imprisonment of 2 years to 7 years is also possible.
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