Definitions of Terms

The rapid development of technology in the wake of new media has equally brought new terms, words, phrases and definition of terms.

Certainty and precision in definition of terms is critical in conveying the interpretation of law to ensure clarity on conduct which is criminalised and or illegal. This means avoiding catch-all or dragnet phrases. While ordinary laws remain applicable in someinstances, such as Zimbabwe’s Criminal Law (Codification and Reform) Act, laws are constantly attempting to reconcile with new concepts that were not historically addressed by the law.

The level of new and intangible aspects introduced by technology means that, laws concerned with tangible aspects such as unlawful entry (housebreaking), will have to explain how unlawful access to a computer or data base constitutes an offence.

Inescapably, this also creates certain contradictions within the body of the law itself. For example, while the introduction of new media also fosters the enjoyment of other rights such as freedom of expression and access to information, this also makes it imperative to create a balance between the enjoyment of these rights and restrictions that ensure new media is not abused.

However, this edition will limit itself to the definition, elements of cybercrimes should as much as is practically possible be precise, to avoid dragnet approaches. The commentary will focus on two definitions and tools that have wide potential to affect individual usage of computers and protection of their right to privacy, integrity of personal information and data.

Computer Device

Section 3 of the Cybercrimes Bill defines a “computer device” widely defined toinclude portable or non-portable electronic programmable device. This could be an

input device (mouses, scanners, cameras), output devices (printers, monitors), computer data storage medium which could include anything that stores data and is capable of reproducing or processing the data whether it is connect to the computer device or not.

Effectively the definition lends itself to wide application, as most gadgets are capable of being or having input devices, output devices or computer data storage including cell phones, home appliances (smart television, fridges and microwaves). There is danger of criminalisation of what used to be ordinary conduct as almost anything is now capable of being deemed a computer device.

Remote Forensic Tool

The Cybercrime Bill defines a remote forensic tool as an investigative tool (software or hardware) installed on a computer system or part of a system used to perform keystroke logging or transmission of internet protocol (IP) addresses.

This in simpler terms is a spying tool or a tool that enables information to betransmitted without the user’s knowledge. The use of this tool extends the powers of interception of information already granted to authorities under the Interception of Communications Act. Governments have invested in their abilities to intercept, and remotely access citizens personal information with limited safeguards. The Interception of Communications Act and the proposed Cybercrimes Bill provisions are subject to abuse and selective implementation.

Observations

• Definition of computers and computer devices will remain considerably wide. This requires enhancing judicial protection mechanisms, including the ability of judicial officers to interpret these provisions circumspectly to avoid criminalising conduct that ordinarily is not threatening or does not constitute an offence.
• Definition of computers and computer device in some jurisdictions has not been defined as concerns remain of being “under-inclusive” as technology evolves or “over-inclusive” to include basic home appliances. Failure to clearly define these creates opportunities for the courts to over extend their mandate in interpretation of the law to implied law making.

• Definition of remote forensic tool is presented as investigative tool for purposes of extracting information. The safeguards for such processes are critical, though spelt out in the proposed Bill, the Interception of Communications Act has similar wide and vague provisions allowing for such tools to be used with equally less oversight on the authorities.