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EU plans tougher punishment for hackers – and their bosses

Biz could be criminally liable if it 'profits' from employees' cyber attacks

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The European Parliament's Civil Liberties Committee overwhelmingly voted to approve proposals to criminalise certain activity relating to cyber attacks last week. The proposals contain plans to make specified "legal persons" within companies liable for certain offences.

"Legal persons would be liable for offences committed for their benefit (e.g. a company would be liable for hiring a hacker to get access to a competitor's database), whether deliberately or through a lack of supervision," the European Parliament said in a statement. "They would also face penalties such as exclusion for entitlement to public benefits or judicial winding-up."

EU member countries will be required to "ensure that their networks of national contact points are available round the clock" and that they can "respond to urgent requests within a maximum of eight hours" in order to prevent cyber-attacks spreading across borders.

The Committee's proposals would make it a criminal offence to conduct cyber attacks on computer systems. Individuals would face at least two years in jail if served with the maximum penalty for the offence.

A maximum penalty of at least five years in jail could apply if "aggravating circumstances" or "considerable damage ... financial costs or loss of financial data" occurred, the Parliament said in a statement.

One aggravating circumstance in which the heavier penalty could be levied is if an individual uses 'botnet' tools "specifically designed for large-scale attacks". Considerable damage may be said to have occurred through the disruption of system services, according to plans disclosed by the Parliament.

Individuals found in possession of or distributing hacking software and tools also face criminal charges under the Committee's proposals.

"Illegal access, interference or interception of data should be treated as a criminal offence," the MEPs said, according to the Parliament.

Using another person's "electronic identity" in order to commit an attack that causes "prejudice to the rightful identity owner" could result in offenders serving a minimum of three years in jail if they are under the maximum penalties that could be imposed.

"Tougher penalties" would be imposed on criminal organisations. Those harsher penalties will also be imposed for attacks on "critical infrastructure such as the IT systems of power plants or transport networks," the Parliament said. If damage caused by attacks is "insignificant" then no criminal sanctions "should" apply.

Criminal offences will also apply for the sale or production of tools that are used to commit cyber-attack crimes, it said.

"We are dealing here with serious criminal attacks, some of which are even conducted by criminal organisations," Monika Hohlmeier MEP said. "The financial damage caused for companies, private users and the public side amounts to several billions each year. No car manufacturer may send a car without a seatbelt into the streets. And if this happens, the company will be held liable for any damage. These rules must also apply in the virtual world," she said.

The Committee's rapporteur hopes to form agreement on a new EU Directive by the summer. Both the European Parliament and Council of Ministers would have to back the proposals for this to happen.

In the UK individuals can face up to 10 years in jail for serious offences under the Computer Misuse Act.

Under the Act it is an offence for a person to knowingly cause "a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured" without authorisation.

Under the Act a person is also guilty of an offence if the unlawful computer access is used to commit, or facilitate, some other offences regardless of whether that subsequent offence is to take place in the future or is indeed possible to commit. A person is also guilty of an offence if they commit any unauthorised act with intent to impair the operation of any computer, prevent or hinder access to any program or data held in any computer, impair the operation of any such program or the reliability of any such data, or enabling those acts to be done.

Making, adapting, supplying or offering to supply any electronic program or data intending it, or knowingly it is likely, to be used or to assist in the commission of unlawful computer access or impairment is also an offence. Supplying electronic programs or data "with a view to its being supplied for use to commit, or to assist in the commission" of unlawful computer access or impairment is also an offence under the Act.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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