TO SUMMARISE MY ARGUMENT

  The difficulties encountered in Cm 3989 are caused partly by the transfer of technology by intangible means which creates problems both for the substantive law and enforcement. These are discussed in my submission to Cm 3989. It is argued that the create problems for two partly linked liability regimes.

  Cm 3989 is narrowly focused on Strategic Export Controls and addresses only part of the problem. It does not consider the leakage of information from UK companies or the transmission of sensitive information by facilitators. The issues fall into the current debate concerning Economic Crime (the term to be construed widely). That debate encompasses money laundering, tax evasion, smuggling, arms exports, illegal trade, counterfeiting. That debate encompasses issues of globalisation, communications technology, international policing co-operation, the role of business and the professions, state and business ethics and policing in a "borderless world". We cannot expect law or legal responses alone to confront these problems others have responsibilities. So far as legal initiatives are concerned they should be undertaken. However, because of the problems they need to be part of a wider package of integrated policing which ties in not only commerce but also Internet Providers and possibly others involved in transmitting information. There is a need for intermediate laws dealing with theft of information.

  There are six potential stages for the prevention and control of the dissemination of strategic information. My submission to Cm 3989 (and Cm 3989 itself) deals with the last two only.

1.  COMPANY SECURITY

  A company (or the directors thereof) may be involved in exports without a licence (or in breach of its terms). This is the primary concern of Cm 3989. The Sierra Leone Arms Investigation emphasises in Lesson 11.9 the problems posed by private military companies.[1] It was acknowledged that "private military companies are in a business which can have a direct and sensitive impact on Government policy and international relations . . ."[2] The problem is wider. Large companies may themselves have information taken and therefore be victims. Theft of propriety information, financial fraud etc all cause commercial loss and it may well relate to sensitive information (see point 3). A company that is negligent and allows a leak may be exposed to civil liability for subsequent down stream loss. They have direct commercial interest in security issues.

  Many types of information which are of concern in Cm 3989 can be thought of as intellectual property. Indeed literature in the US draws the analogy. To give one example—a disgruntled employee working on a sensitive government funded weapons related research program tendered to a private company, has access to information which he take and sells abroad. This may be nothing to do with DTI licensing systems at all, but is related to the general problem—the dissemination of sensitive information of use to a foreign power or other engaged in the production of weapons of mass destruction.

  Note that the scale of the problem is large. In 1998 a US Report (520 company responses to 3,890 requests) recorded attack/insider abuse of net access in 353 cases, theft of propriety information 82, unauthorised access by insides 203.[3] The evidence suggests (in the USA) that companies are poor about protecting intellectual property . . . 54 per cent of respondents did not have any propriety information protection program (PIP) in place, potentially exposing their organisation to an intellectual property loss incident.' There are a range of potential security measures designed to receive information. This is not the place to go into detail but consider the following; Formal policies and procedures, communicating the program, training, pre-employment screening, due diligence, using need to know principle, use of physical security measures, employee identification and visitor control, valuing confidential information, classification and marking protection, information systems, bag search, storage and destruction of sensitive information, photocopying restrictions, use of encryption, monitoring e-mail and internet, non disclosure agreement, due diligence checklists. Risk analysis, fraud prevention etc.

  These should be part of any companies own risk assessment.

2.  CONTROLLING INTERNET SERVICE PROVIDERS (ISP'S)

  If there is concern with the transmission of electronic information then consideration should be given to regulating the facilitator? The starting point for a broader perspective is the Financial Action task force (FATF) "the fight against money laundering is not the sole responsibility of governments and law enforcement agencies".[4] The FATF recommendations contain reference to Customer identification, and increased diligence. Recommendation 7 contains reference to the criminal culpability of corporations. This perspective has influenced a range of issues outside money laundering which loosely can be described as economic crime. Amongst these issues are the problems concerning the transmission of intangible property encountered in Cm 3989. Extending these controls to ISP's is problematical concerning the internet.[5] However, other intermediate facilitators may have more control over what is transmitted. It would seem appropriate to impose some controls even if based on due diligence and reporting to NIS.

 3. STATE IMPOSED COMPANY MEASURES

  Business may have both commercial and public interest responsibilities to control leakage.[6] These cannot be left to the voluntary measures indicated in 1. There may be a layer of legislation (see in money laundering) requiring due diligence, especially if a private company is working under contract for government with sensitive information/and or perhaps funded research.[7]

  The range of problems is wide. Consider the dangerous insider. It could be an act of sabotage or a spy attempting to access a data base for which he wasn't authorised. In one example of company undertaking sophisticated work for NASA has information unlawfully transferred out of the jurisdiction. The company may suffer economic loss but there are security implications. Where does the information go? to a commercial competitor or government (and are they linked in any event). [8]The financial loss could be considerable, and in the US it has been said that "crimes of state have begun to translate into computer crime." Note the problem of freelancers hacking into the network, as one report states "increasingly, as the global economy heats up, national security and corporate security dove-tail."[9]

  Whilst question of government, citizen and company ethics in this area should be seen as convergent we should not overstate this. There are tensions between legitimate commercial activity and the public interest. It is a sensitive relationship, as evidenced by recent disclosure problems for the DTI. [10]This illustrates tensions with the Code of Practice on Access to Government information (exemptions therein) and the problem of disclosure which involves third party confidentiality. The DTI and manufacturer may take a different view on what is commercial harm. [11]Further the bona fides of a company cannot be assumed. The situation can also involve corporate corruption whereby a company seeks to use confidential information to win contracts. [12]It should be noted that within large Corporations important individuals may use the Corporation to divert the benefits of contracts—it can become problematical—where does the activity of the company end and a director or employee abuse his/her position?[13].

4.  ESPIONAGE AND THEFT

  We have been considering the problem from inception, moving towards the export stage. The problem may be a specialist company seeking in some way to remove sensitive information. Far more likely it will be an employee, industrial saboteur, agent, or other opportunist taking information which does not belong to him/her. If subsequently it is transmitted and or exported this is further evidence that the information was stolen in the jurisdiction.

  In my original submissions there was reference to theft of information. I pointed out the difficulty, that electronic information could not be stolen under the Theft Act because it is not deemed to be property (see my response to Cm 3349). The last thing that is wanted with strategic arms control is that reform becomes subsumed under a general problem with a modern definition of property under the Theft Act although it is an extremely important issue.

  It is not an impossible problem to address. A recent study in the USA indicated that theft of trade secrets cost US business $2 billion per month. On 11 October 1996 The Economic Espionage Act 1996 was signed into law. The law created federal jurisdiction regarding both state-sponsored and the commercial theft of trade secrets. Misappropriation or theft of both intangible and tangible property became a crime under the act. A trade secret is defined as all forms and types of financial, business, scientific, technological, ecomomic or engineering information including patterns, plans, compilations, program devices, formulas, designs, phototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, complied, or memorialised physically, electronically, graphically, photographically or in writing . . . [14]

5.  CHEMICAL WEAPONS ACT 1996 (AND POSSIBLE LEGISLATION TARGETING NUCLEAR AND BIOLOGICAL WEAPONS)

  My response to Cm 3989 refers.

 6.  CUSTOMS—THE CEMA AND EXPORT REGIME

  See attached comments on Cm 3989. Consider the analogy of the export or import of drugs. Customs is the first line of defence on an import its role is to prevent the drugs entering and the last line of defence on an export.

DEFENCE IN DEPTH—CONCLUDING REMARKS

  If stage 4 is in place there is a choice. The focus can be on the theft, probably evidenced by a subsequent transmission which may or may not involve an export. If there are problems with transmission and export you may still have an offence of theft of information within the juridication. If stage 5 is in place the regime is supported by conduct which may or may not involve theft from a company. It is particularly useful if the company itself is suspect.

  Both stage 4 and 5 may establish liability without reference to licensing. They may also be a useful option if there are problems with licenses and the position of the DTI and FCO. In particular where, on the facts, employees can be distinguished from the company. If theft is problematical and in particular where the facts suggest clear breaches of licensing by the company the case can be dealt with by Customs. Customs are probably better equipped to deal with offences linked out of the jurisdiction—that is not to say that stages 4 and 5 could not used.

  Layering lines of responsibility brings state, law enforcement agencies, and legitimate business more into line. In particular it may be easier to develop ethical policies for all concerned if they are all seen to share responsibilities. This is consistent with current thinking in the area of economic crime.

6 October 1998.

SUMMARY OF ARGUMENT IN THIS SUBMISSION

  The main focus of this submission is in addressing Section 3.1 and 3.2, 3.3 and 3.4, with reference to Annex A: 2, Objective (c) and points 7 and 9 of Cm 3989. The recommendations as stand involve two different and arguably alternative liability and policing regimes. Cm 3989 has opted for a Customs policing regime. The emphasis is on altering or replacing the Import, Export and Customs Powers (Defence) Act 1939 (IECP) and the Chemical Weapons Act 1996 (CWA). Reforms concerning controlling intangible transfers of technology are important. With reference to the IECP, CEMA and the CWA there is a need for a clear direction as to what exactly the law should be controlling the transmission of. In particular is the focus to be on the transmission or export—of technology or information or documentation? It seems that various combinations of these are envisaged and there are potential legal difficulties. The relationship between the IECP, CWA and CEMA is complex. There is a problem as to whether section 170 of the Customs and Excise Management Act 1979 (CEMA) also requires amendment. Further whether the CWA should be further drawn into a Customs policing and liability regime.

1.  SUBSTANTIVE LAW

  There are a number of technical legal difficulties with the outline proposals in Cm 3989. Of most concern is a fundamental problem concerning exactly what it is that the law should be regulating. Before we address this problem we need to identify two overlapping liability regimes.

1.1  CUSTOMS LAW

  The vires of the IECP is framed in terms of carriage of goods. (1.3.1 and 1.4.1 of Cm 3989). Power is given in the primary legislation for control to be by secondary legislation. The legislation was passed two days before the outbreak of the Second World War and was formed in terms of attempting to prevent trade with the enemy. The principle is that specified goods are prohibited by the DTI from being exported without a license. Categories of goods are specified and further defined by SI's. The onus is on the exporter to establish whether goods are, or are not subject to a licence requirement.

  If a breach occurs then Customs can use a strict liability offence under section 68(2) CEMA or a more serious offence under Section 170 CEMA.

  Section 170(1)(a)(iii) of CEMA refers to "goods with respect to the importation or exportation of which any prohibition or restriction for time being in force under or by virtue of any enactment. Section 170(1)(b) states ". . . is in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with such goods . . . with intent to defraud . . . commits an offence. Section 170(2) CEMA broadens the categories of participation to those being knowingly concerned in a fraudulent evasion or attempting an evasion.

  The Customs liability regime directly links the prohibition (via the primary tariff of goods by type in the 1939 Act) plus further SI's which from time to time stated what is prohibited without a licence. It should be remembered that Customs used section 170 and strict liability offences under section 68(2) CEMA in the Arms to Iraq export cases which were subsequently investigated in the Scott Inquiry. [15]In these cases the breach of prohibition related to control orders originating in 1987 (ML4/ML16 (4)) of Group 1 of Part 11 of the Export of Goods (Control) Order 1987. The control list also contains the Dual-User and related Goods (Export Control) Regulations 1995. The point being that the control, licence, prohibition regime should use consistent terminology in so far as this is possible.

1.2  CWA

  As I understand the White Paper Customs would also enforce this legislation. There is nothing to prevent Customs doing so but it should not be confused with CEMA. It should also be remembered that in the Iraq export cases one of the problems was perceived to be the use, by Customs, of their discretionary power to compound, which is contained in CEMA. Whilst they are available for use outside CEMA offences (and Customs would be very unlikely to use them for offences under section 170 of CEMA or the CWA) it remains the case that the CWA is outside the normal prohibition regime but also that it overlaps with it.

  It is of a fundamentally different nature to CEMA. Whilst it can be linked to the 1939 Act because of the nature of what is being controlled, and it may involve licensing issues it is far wider in scope.

  To draw an analogy the relationship between CEMA and CWA is similar to the one between the Misuse of Drugs Act (MDA) and CEMA. They overlap. Comparing the CWA and the MDA and the latter with CEMA assists. Under section 3 of the MDA a prohibition is created, but it does not expressly create an offence. Consequently evasion of the prohibition is charged as an offence under section 170 of CEMA. Normally Customs prosecute under section 170 CEMA and enhanced penalties come into effect. In most other cases the offence sections of the MDA (dealing with possession and supply) are dealt with by the police. [16]

  The point to make is that the CWA offence is not a standard Customs offence based on prohibitions and their breach. The enforcement powers of Customs, the mens rea requirements of a prohibitions and breach regime may not be imputable into the CWA and any alterations to it.

2.  THE TRANSFER OF TECHNOLOGY BY INTANGIBLE MEANS

2.1  The general problem

  It would be better to think of these liability regimes separately. Leaving aside for the moment, the question of criminal culpability and policing under each, there is a need to consider what it is intended to prevent.

  Reference Cm 3989, 3.1.4 goals indicates "action against anyone found to be deliberately helping in any way a weapon of mass destruction programme . . . also concerned that a UK person or Company, might, without being directly involved in an attempt to produce a weapon of mass destruction, nevertheless, provides a service or information which could assist such a programme. The existing end-use control is intended to prevent the export of equipment which might be used in such programmes but the Government considers that; it would be desirable to introduce measures to prevent other ways in which such programmes might be given assistance, such as the transfer of technological information by intangible means or provision of technical services. In view of this, it proposes to make it an offence to do something that would promote or facilitate the development or production of weapons of mass destruction either if the Government has informed someone that what he is doing poses such a risk or if someone knows by other means or has grounds for suspecting that a particular course of action might assist such a programme".

  In Cm 3989 point 3.2.1 it is stated that the Government proposes to provide that documents transferred abroad containing controlled technology should be subject to export licensing requirements, whether exported physically or in electronic form. It is made clear that the concern is the "ever increasing ease with which information can be transferred across national boundaries by electronic means, ie by fax or e-mail". In the next section we have reference to "information can be passed in non-documentary form." Under Cm 3.2.2 "intangible technology transfers. Under point 3.2.3 "possible controls on the publication of controlled technology on electronic networks" and "publication of controlled technology." Later under Annex A:2, Objective (c) there is "To enable the Government to impose controls on intangible transfers of technology." It is then explained that "whatever the means by which the transfer was effected, secondary legislation would provide that all technology in documentary form that was currently controlled when exported tangibly, should be controlled when exported intangibly."

  Why technology? is technology the same thing as scientific? or engineering? chemical? It is not intangible technology that you are transferring it is information with a scientific, technological, economic or sensitive content. In point 3.2.3 why publication? [17]It is intended to try and control exports across a border or transmission across a border or both? [18]The term "intangible transfer of technology" is surely incorrect. It is not technology which is transferred it is information with a technological content. Transmission may be a better term than transfer. These comments are not a criticism of Cm 3989! The problems are common when trying to deal with law and technology issues.

  Focusing on the information/technology first. A part of this problem is resolved in the US Economic Espionage Act 1996. The law created federal jurisdiction regarding both state-sponsored and the commercial theft of trade secrets. Misappropriation or theft of both intangible and tangible property became a crime under the act.

  Ignore the context for the moment and consider the terminology.

  A trade secret is defined as all forms and types of financial, business, scientific, technological, economic or engineering information including patterns, plans compilations, program devices, formulas, designs, phototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialised physically, electronically, graphically, photographically or in writing if . . . [19]

  This may provide a helpful starting point. The framework needs extending to include secret information appertaining to various end use situations. You may not want a emphasis on "Economic" it could be sensitive only. However, the link between strategic arms and economic crime may be strong.

  The US legislation is not dealing with transfer/transmission. The problem of transmission needs to be tackled. Transfer is a term that I would associate with theft not Customs laws. It is the language of Preddy and Slade, theft and of bank account transfers (see my submission to Cm 3349). Assuming there is a sufficiently broad definition of the information, the word transmission (and you can specify across borders) seems sufficient.

2.2  ALTERING THE CUSTOMS PROHIBITION REGIME

  The IECP needs to be altered to include the export of information by its transmission overseas. The tariff categories can be further defined by reference to chemical, nuclear and biological by SI. However, CEMA also may need alteration—especially section 170 so that it covers this situation. The position is broadly analogous with the pornography problem alluded to in may submission to Cm 3349 and is not repeated. You may need to amend the IECP to widen "goods" and "export" to capture what is required. As the original rationale was to be repealed. You are making a large leap from goods to intangible property—it is a fundamental shift in emphasis.

2.3  ALTERING THE CWA

  The wording of CWA uses the phrase participate in the transfer. If the word participate came before develop(ment) and participate was referenced to transmitting information by intangible means, further defined as in 2.1 you may have a working formulation.

  In point 3.3 of Cm 3989 trafficking and brokering deals with controlled goods " . . . an emerging problem is the brokering of sensitive information." Most commonly trade secrets in intangible form. They are every bit as valuable as the goods themselves. If you are to alter the law (as indicated in point 3.1 of Cm 3989) because of 3.2, (the transfer of technology by intangible means) it is worth considering 3.3 as well. There is a second reason. What about the individual who simply sells the information for profit. It is subsequently brokered to third parties who use it to develop a chemical weapon. Under the CWA you have to establish in the first part of the offence direct knowledge of the purpose and apparently a direct link between supplying the information and a consequence. Money launderers get round liability by involving chains which distance themselves from the eventual result.

  It is noted that the prohibition regimes for chemical, nuclear and biological weapons of mass destruction are to be brought into line. Consider something like the following alteration to the CWA (the italics are mine, they are intended to focus some initial thoughts and ideas nothing more!); a possible offence dealing with the above concerns might look as follows.

  An offence for any person in the UK or any UK person overseas to . . . participate in the develop(ment), produc(tion), use, possess(ion) or participat(ion) in the transfer of a chemical, nuclear or biological weapon, or to provide, by way of transmission, either directly or indirectly, whether within the UK, outside the UK or by way of cross border, information, financial, scientific, technological, economic or engineering in nature, including patterns, plans, compilations, program devices, formulas, designs, phototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialised physically, orally, electronically, grapically, photographically intended (or having grounds to suspect) to promote or facilitate the development, production, use or possession of a chemical, nuclear or biological weapon, or to indirectly provide information to a broker having grounds to suspect that such information may be used in the development, production, use of a weapon of mass destruction . . . or to engage in the military preparations or preparations of a military nature, intending to use a chemical, nuclear or biological weapon anywhere in the world.

2.4  OVERLAP

  It is possible that an offence could occur under both and that licence issues could arise under CEMA and CWA. CEMA and the CWA are primary legislation. Any new legislation to repeal or replace the IECP which provides by SI's to extend export requirements and cover the transfer of technology by intangible means should consider using language similar to that which may be adopted in both CEMA and the CWA. Amending both CEMA and the CWA should have regard to this tripartite relationship.

 3.  THE PROBLEM OF MIXING LIABILITY REGIMES

  Reference point 3.4 Cm 3989, the new legislation is to be given to Customs. An offence under CWA may be committed without reference to the licensing system although it will no doubt, often be a relevant consideration. Whilst the offences overlap those under CEMA are entirely tied to the licensing system. However if you keep one prosecuting authority you may have problems.

3.1  CUSTOMS PROSECUTING UNDER CEMA

  In Customs law the mens rea requirement is generally expressed as "intentionally", "recklessly" or "knowingly concerned." It is a subjective test with court jurisprudence well tested and understood in the context of decided Customs cases. Knowingly concerned in Customs effectively operates as an alternative to aid, abet, counsel or procure. It creates chains of liability in the context of a continuing offence. Knowingly concerned is more commonly associated with imports. It requires that there is a willingness to assist or participate in an enterprise and would take place even if there was uncertainty as to whether an import had occurred. It is a continuing offence after import. [20]It has been used in a small number of export cases. [21]I can see no objection in principle to reversing this logic and applying it after the export. It may enable Customs to prosecute a UK citizen overseas but there may well be jurisdictional problems with this.

3.2  CUSTOMS (OR ANOTHER AUTHORITY?) PROSECUTING UNDER THE CWA

  The difficulty is that the Customs liability regime does not easily transfer across to enforcement under the CWA.

  Note points 3.1.1. and 3.1.2. Cm 3989 and consideration of using aid, abet, counsel or procure. It is doubtful that the law concerning secondary parties could be applied. The CWA legislation is not in a traditional Customs form. Concerning aid, abet, counsel and procure, you need a principal offence. [22]If the perpetrator is outside the jurisdiction, you will have problems prosecuting a secondary party. [23]It is possible, you may not need the perpetrator provided that you have an offence. But note that the mens rea requirement overtakes the substantive offence an intent has to be proved for a secondary party whatever the primary legislation says. [24](that said the test is flexibly interpreted!). The prepetrator will have to have committed an offence under UK law. I am not certain that you can rely on secondary party liability to support the CWA in the way that Cm 3989 envisages. You may not have to.

  The offence under the CWA is largely focused on three categories of principle defendant. The developer (1), the transferor (2) and someone engaging in military preparations (3). In the second category the person who does the transfer (and he probably engages as well) is the principal offender. This is the category of person likely to be caught by the introduction of "transfer/transmission of technology by intangible means". He could be a secondary party to either 1 or 3 but in respect of 2 he is the perpetrator. You may not need secondary party liability.

3.  ABSENCE OF CONSIDERATION OF WARRANT AND EVIDENTIAL ISSUES

  I am concerned about the absence of these considerations in 3.4 if you are going to extend the offence to include intangible information etc. [25]It is not the time to go into detail but the problems of definitions moves across to difficulties in obtaining warrants ie to seize what? and the subsequent use of what is seized as evidence in court. This needs to be considered in the context of types of intangible property (in one sense it never leaves the UK!). Of course Customs and other law enforcement agencies are well aware of these problems in any event.

  Hardware searches are not difficult. The problems are in the software and any intangible information. It may be in two places at once! Where is property located? Is is property? (not unless you define it as such in the offence section). What about defendant illegally appropriating a tangible item containing an intangible component, such as a chemical formula written on a stolen piece of paper. The paper has no value the overall value the formula. The paper which record it is irrelevant apart from on the warrant, unless you want to seize the formula!

  In any offence regime is considered with some reference to these problems. My previous point about the importance of adopting consistent language in terms of offences is relevant to these issues also.

4.  SOME DOUBTS ABOUT THE PRACTICALITIES OF ENFORCEMENT

  The arguments which have been developed have emphasised difficulties but they are not reasons which would justify not altering the law. There is a further aspect to legislation. One of the lessons contained in chapter 11 "Report Of The Sierra Leone Arms Investigation" is a reference to understand the importance of domestic British legislation, not as a technical matter for experts, but capable of significantly affecting policy and operations. Whilst the context is different, one observation is that "all officials need to have the facts well within consciousness" . . . practical significance of both national and international legal measures." (11.8). Arms control and licensing continues to cause problems for different Departments. [26]It is important therefore for law enforcers and administrative civil servants, and I would add commerce, to understand exactly what is being controlled.

5  MINUTE TO SELECT COMMITTEE

  What these comments are getting at is that technology related issues create difficulties in using CEMA and or the CWA. Annex A of Cm 3989 point 7 (which refers back to BMARC) says "some doubts were expressed about the practicalities of enforcement". Practicalities of enforcement start with the substantive law. The issues raised are familiar in current debate on economic crime. [27]With the limitations attached to legal responses, increasingly the participatory role of business and professions is coming into focus. These themes are developed in my memorandum to the Trade and Industry Committee (which I was asked by the Committee to supply). Initiatives should be thought of as in layers. 1. Company security measures. 2. State imposed or self regulation of transmission intermediaries. 3. Enforced company regulation because of dual interests. 4. Espionage/theft legislation. 5. CWA and similar 5. Customs. In this framework Customs is the last line of defence!

6 October 1998

2   Ibid, p 115. Back

3   Ibid, p 5. Back

4   Gilmore, W C, Butterworths Guide to Money Laundering, FATF Recommendations (Butterworths, London, 1995), pp 313-323, influenced Council of Europe EU Money Laundering Directive (1991) and Sect 52 DTOA 1994. Back

5   Palfrey, T, "Policing the Transmission of Pornographic Material" (1996) Information and Communication Technology Law, Vol 5, No 3, 197. Back

6   Computer Security Issues and Trends, 1998 CSI/FBI Computer Crime and Security Survey, Vol No 1, Winter 1998, p 3. Back

7   PRICEWATERHOUSECOOPERS Intellectual Property Loss Survey Report August 1998, Part 5, What is being done to protect intellectual property? and Issue Update Vol 2, No 7 (1997) Investigative Due Dilligence. Back

8   Computer Security Issues and Trends, Vol. IV, No 1, Winter 1998, pp 3-8. Back

9   Computer Security Issues and Trends, 1998 CSI/FBI Computer Crime and Security Survey. Back

10   Parliamentary Commissioner for Administration Fourth Report, Session 1997-98 Volume I Access To Official Information pp 148-149. Back

11   Ibid, p 148, note that the Freedom of Information Bill may have a significant impact. Back

12   See Zeldin, M, Bullock, J and DiFlorio, C, Transparency, Integrity and Good Governance: The Foreign Corrupt Practices and Related International Initiatives to Combat Corruption, September 1997. Back

13   Ibid, p 13. Back

14   The complexity of legal issues is vast! see Federal Prosecution Of Violations Of Intellectual Property Rights (Copyright, Trademarks and Trade Secrets) May 1997 (Computer Crime and Intelligence section, Criminal DIVISION, US Dept of Justice). Back

15   Inquiry Into Exports Of Defence Equipment and Dual-Use Goods To Iraq And Related Prosecutions (Scott Inquiry) Part 3, Section H, chapter 5 The Dunk case Customs used section 170 CEMA, Part 4, Section J, related Supergun matters Customs used section 68(2) CEMA, and subsequently section 170 CEMA, see Appendix A, Part B(ix) Customs memorandum to Scott for explanation of powers. Back

16   Blackstones Criminal Practice 1998, pp 688-699. Back

17   Not printed. Back

18   See section 10 of the Interception of Communications Act 1985. Back

19   Not printed. Back

20   Attorney-General's Reference (No 1 of 1998): CA, (1998) Law Society Gazette 30 September 1998, p 34. Back

21   The prohibition is framed as "bringing to a place" Dixon v McAllister [1944] NILR 38, attempts, Pickett v Fesq [1949] 2 All ER 705, intention to return with goods, R v Berner and Levine (1953) 37 Cr App R 275. Back

22   A problem area, Thornton v Mitchell [1930] 1 All ER 339, an issue would be can someone overseas commit the actus reus of an offence triable in the UK. Back

23   AG Reference (No 1 of 1975). Back

24   Smith, KJM, A Modern Treatise on the law of Complicity (Clarendon Press, 1991) p 37, note awareness of the possibility that act will encourage may ground an intent, see NCB v Gamble [1959] 1 QB 11, but note that there must be knowledge as to relevant circumstances, as in R v Bainbridge [1960] 1 QB 129 and Johnson and Youden [1950] 1KB 546. Back

25   See Federal Guidelines for Searching and Seizing Computers (US Dept of Justice) June 1998, Definitions Section, and generally treatment of seizing hardware and soft ware, drafting warrants and use of information as evidence. Back

26   Report of the Sierra Leone Arms Investigation (HMSO, 1998), p. 117. Back

27   It was not within the remit of Cm 3989 (Strategic Export Controls) to consider these wider issues. Back