§ Mr. CohenI beg to move amendment No. 1, in page 1, line 19, at end add—
'(4) No offence under this section is committed by any person if the computer that performs the function is the computer to which access is secured or intended to be secured, and
- (a) the computer controls equipment used only for personal, domestic or recreational purposes, or
- (b) the computer has been lost and the access in question is secured, or intended to be secured, in order to establish ownership of the computer, or
- (c) the place where the computer is located can be used by unauthorised persons, and the access in question is secured at a time when that place is authorised for use by unauthorised persons.'.
§ Mr. Deputy Speaker (Sir Paul Dean)With this. we may take amendment No. 2, in page 1, line 19, at end add—
'(4) For the purpose of this section, it shall be a defence to prove that the access in question was in the public interest.'.
§ Mr. CohenI shall try not to delay our proceedings. Amendment No. 1 would introduce into the Bill a definition of a "computer". I made several attempts in Committee to get a definition included, or at least to restrict the extent of the problems that will arise because no definition is included. As I said on Second Reading, that is a flaw in the Bill.
In Committee and on Second Reading, I said that there was a danger that a section 1 offence could apply to a variety of consumer electronics and domestic appliances that have some computing functions. At the moment, that could apply to a long list of appliances which I have listed in amendment No. 8. My opinion is shared by the well-respected barrister, Alistair Kelman, who is an expert on computer law and an occasional adviser to the police on computer-related crime. In an article in Connexion on 21 February, he wrote:
The Bill may throw up some unlikely hackers if it survives unamended. These could include those who fax other people's letters to third parties without the author's permission and neighbours who use washing machines and microprocessors without prior consent.That is the point I have been making: it would be absurd for that to happen.The definition will be a problem in future, but we should try to narrow it down now, and that is the purpose of my amendments.
1331 According to amendment No. 1, only one computer would be involved and if that was used
for personal, domestic and recreational purposes",no section 1 offence would be committed. Similarly, if a computer had been lost and access to it was obtained to establish ownership, that would not be an offence. If there is no proper definition, many problems will arise. I am sure that it is not the sponsor's intention that the Bill should apply to washing machines and microprocessors, but there is a danger of that occurring in future.Amendment No. 2 provides that
it shall be a defence to prove that the access in question was in the public interest.Amendment No. 2 is important, because it follows the line adopted by the Law Commission report in 1981 on breach of confidence. That report recommended the need for a public interest defence. That would be a useful addition to the Bill.In that regard, we must bear in mind the case of the journalist, Mr. William Goodwin, aged 24, who is a trainee reporter with a trade magazine called The Engineer. He received a telephone call that divulged confidential company information. On checking the facts with the company, he received an injunction. Despite appeals to the House of Lords, on 10 April he was fined for refusing to disclose his sources.
That decision by the Law Lords has been severely criticised. A Guardian editorial on 11 April stated:
Only the English judiciary with their narrow and restrictive approach to free speech could have ruled in favour of commerce. British courts have a tawdry record in defending a free press. They have already been reversed in the Distillers and Harman cases, and Spycatcher will shortly follow. Once the Goodwin case reaches Strasbourg, it will be judged in accordance with article 10 of the European Convention on Human Rights which recognises the importance of a free press in a democratic society. Though it has never ruled on disclosure of sources, its record leaves no doubt that the English courts will once again be found in breach of the convention.That view is supported by The Economist which stated in that same week:Under the common law of confidentiality, a company can stop a paper publishing news improperly leaked (for example, by an employee or from a stolen file), unless the paper can demonstrate an overriding public interest (for example, the revelation of wrongdoing). The company will insist that publication would do it dire harm. The judge must weigh the rival interest.That is my view, as shown in amendment No. 2. It is important to try to defend whistleblowers who are acting in the public interest and who are performing a public service.That has happened in three cases. One was that of an employee of a drugs company which was dumping drugs, banned in the west, in the Third world. An employee informed the Inland Revenue that his employer, a major insurance company, was defrauding the taxpayer. Another employee informed the Ministry of Defence that his employer, a contractor, had been grossly overcharging. In those three cases, the public interest should be a defence that the courts could weigh.
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I shall give the House two examples. A journalist might receive a phone call during which the caller says, "I am taking a risk in telling you this. However, if you use this number and a password, dial into the computer and read 1332 the file, you will find evidence of a disgraceful event that should be made public." Let us suppose that the journalist does that, and a story is printed about the wrongdoing. By doing that, he is condemning himself to what will be a section 1 offence, even though he is acting in the public interest.
Let us suppose also that a journalist receives a smart card—not a piece of paper—containing certain data, and that he puts it into his computer to discover the information that it contains. As soon as he does that, he commits what will be a section 1 offence, even though he is acting in the public interest. What will be a section 1 offence could become the equivalent of the old and discredited section 2 offence under the Official Secrets Act 1911. Surely we do not want to go down that road.
The public interest defence should be included in the Bill, and the courts could then decide whether that defence outweighed the offence that had been committed. As The Economist observed, the whistleblower still has to establish that a wrongdoing was involved in leaking information. I have introduced a reasonable amendment so that we do not drift into replacing section 2 offences under the 1911 Act with what will become section 1 offences.
§ Mr. ColvinI listened carefully to the hon. Member for Leyton (Mr. Cohen). He talked about the three different categories of exemption, the first being gaining unauthorised access to
computer controls equipment used only for personal, domestic or recreational purposes.Let us suppose that the "equipment" is the radar or navigation equipment of a small aeroplane. Unauthorised access to that equipment could be extremely serious. Secondly, some computers may be used for dual purposes, for both personal and non-personal use. As drafted, the amendment would provide that those who access the computer for whatever purpose would not be guilty of an offence under clause 1.The second exemption of lost computers for which the amendment provides is surely not necessary. Unless there were a clear instruction to the contrary, an individual—someone in authority, or the police, for example—would reasonably assume that the owner of the computer would want it to be traced. Accordingly, I do not think that the second exemption is required.
The hon. Gentleman's third exemption would mean that an offence would not be committed if the place where the computer was located could be used
by unauthorised persons … at a time when that place is authorised for use by unauthorised persons.That exemption would surely create a legal loophole that we would not wish to enshrine in an Act. It would allow those who have authority to be in a room—for example, office cleaners late at night—to be able to gain access to a computer that is in the room without committing an offence. It would go even further. Anyone who entered the room when the cleaners were allowed in would be able to access the computer with impunity. A dishonest employee could stay behind for that purpose. The exemption would create a most undesirable loophole. On the basis of those points, I hope that the hon. Gentleman will withdraw his amendment.Amendment No. 2 makes provision for those who commit clause 1 offences to escape conviction if they can prove that they were acting in the public interest. It is most undesirable to introduce a general and vague public interest defence. The result would be to create a criminal 1333 offence that was so weak and uncertain as to call into question its very existence. The Bill must state clearly and precisely what would be the predictable consequences of committing the offences it creates.
The hon. Gentleman suggests that, even though the mischief identified in clause 1 has been done, there is some differently perceived and wider interest that, in effect, means that the mischief does not matter. Surely it always matters. Such an exemption would mean that anyone—he mentioned journalists—could hack into a computer if, in his personal judgment, however misplaced, he thought that he was assisting some general public good. That undermines the offence and runs counter to the whole purpose of the Bill.
I remind hon. Members that we are not talking about competing or balancing interests, as under civil law. Still less are we trying to reopen the 1989 debate on the Official Secrets Act. We are talking about outlawing and deterring unauthorised access to computers, and in particular what should be the predictable consequences of that activity. A public interest defence had no place in such a scheme. I hope that the hon. Gentleman will not feel compelled to press his amendment.
§ Mr. Douglas HoggI profoundly agree with my hon. Friend the Member for Romsey and Waterside (Mr. Colvin). I understand the argument of the hon. Member for Leyton (Mr. Cohen), but I hope that he will feel that the case put by my hon. Friend is sufficient to persuade him not to press the amendment to a Division.
§ Mr. CohenI take the point, and I shall not press my amendment. However, I hope that my point about the public interest will be picked tip at some future date. We may well have to return to it in relation to this Bill. I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.