Data Theft? Cybercrime and the Increasing Criminalization of Access to Data

Abstract

The use of computers in the commission of crime, so-called ‘cybercrime’, presents a considerable challenge to law enforcement. Central to the prosecution of cybercrime is the offence of unauthorised access to a computer, or ‘hacking’. Originally conceived of as analogous to trespass, the trend in some jurisdictions has been toward punishing access to computer data per se. This issue also arises under the Council of Europe Convention on Cybercrime which criminalizes ‘offences against the confidentiality, integrity and availability of computer data and systems’. As the criminal law traditionally provides protection only to limited forms of information, the increasing use of the criminal law to protect computer data therefore confers on it a status not enjoyed by information stored in other forms. Drawing upon the laws of Australia, the United Kingdom and the United States, this article explores the increasing criminalization of access to computer data. It describes the evolution of cybercrime laws and considers ways in which problems of over breadth may be avoided. Questions will also be raised as to the appropriate role of the criminal law in protecting information.