Time to Reassess: Is the Computer Misuse Act Fit for Purpose?

New opportunities for criminal activity arrive with the availability of new technologies. But often these “new” opportunities for crime simply represent modified version of existing offences. When given appropriate time, traditional criminal law principles are expanded by the court to address new criminal activity. This process is slow, but is also methodical, and balances competing interests and interactions across various offences. Alternatively, Parliament can respond to the advent of “new” crimes by passing new laws in a much shorter time frame: such was the case with the Computer Misuse Act 1990.

This form of legislative overreaction gives rise to a number of issues that may not be apparent when the legislation is first introduced. One such issue stems from the reliance on over-broad language that attempts to capture all possible forms of harmful conduct. The preference for creating broad laws is a by-product of the costly, and slow moving political and legal process, in contrast to the fast moving development of technology. Laws that target particular technologies would necessarily need to be constantly updated, or risk becoming obsolete. In adopting broad terminology, the Computer Misuse Act attempted to avoid this need for constant updating.

But, the adoption of “technology-neutral” language in the framing of an offence does not in itself result in technological neutrality. Where a specific conceptualisation of user interaction with technology forms the basis of a criminal offence, that offence is inherently not technology-neutral. The conception of what a “computer” was, despite it not being defined by the Act, shaped the construction of the offence and has impacted its subsequent application. With this in mind, we will explore the initial framing of the Computer Misuse Act, the various terminological options and understandings available to law makers (computer crime vs cyber crime vs computer misuse), and the implications of their choice in criminalising “computer misuse”. Particular reference will be made to other areas of the criminal law that have evolved to respond to the use of computer technologies in spite of the Computer Misuse Act.