Introduction

This first category of offence is concerned with intentional and without right access to the whole or part of a computer system. It is intended to provide the basic offence of ‘dangerous threats to, and attacks against the security … of computer systems and data’. Given the potential breadth of such an offence, parties may require that the offence be ‘committed by infringing security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer system that is connected to another computer system’.

Australia

We have seen that the Australian provisions are classified according to whether they are ‘serious computer offences’ or ‘other computer offences’. In the context of access, the serious computer offence is found in s. 477.1(1)(a)(i) Criminal Code (Cth) which makes it an offence for a person to cause any unauthorised access to data held in a computer, knowing the access is unauthorised, and by that access intending to commit, or facilitate the commission of, a serious offence, by that person or another person. A person may be guilty of this offence even if committing the serious offence is impossible, but it is not an offence to attempt to commit this offence.

In relation to ‘other computer offences’ it is an offence under s. 478.1(1) Criminal Code (Cth) for a person to intentionally cause any unauthorised access to ‘restricted data’, knowing that the access is unauthorised. The significant feature of this provision is that it punishes simple access to data, with no requirement of an intention to commit or facilitate the commission of another offence.

Canada

The Canadian provisions are classified as ‘Offences against Rights of Property’ under Part IX Criminal Code (Can). Unlike the other jurisdictions, these provisions focus on obtaining the use of a computer, rather than access to the computer. Under s. 342.1(1) it is an offence where a person fraudulently and without colour of right: