Amendments proposed to create the conditions for producing "awesome creativeness" among Malaysians which is vital perequisite if Malaysia is to emerge as an Information Superpower in the 21st century

Speech (III) - Computer Crimes Bill 1997
by Lim Kit Siang

(Dewan Rakyat, Tuesday):I have given notice to introduce six amendments to the Computer Crimes Bill during the Committee Stage. The Opposition supports the Computer Crimes Bill but we want Malaysia to have the best Computer Crime Law, not just for software companies and foreign investors, but most important of all, for Malaysians and future generations.

The objective underlying these amendments is to create the conditions for producing "awesome creativeness" among Malaysians, which is a vital prerequisite if Malaysia is to emerge as an Information Superpower in the 21st century.

The first three amendments seek to reduce the maximum penalties for offences under Section 3 for unauthorised access, section 4 on unauthorised access with intent to commit further offence and section 5 on unauthorised modification.

Ithiel de Sola Pool in his book Technologies of Freedom clearly states the danger of applying old laws carelessly to new technologies. The book states:

As soon as the possibilities of a new technology are dimly understood, Pool said, entrepreneurs, interest groups, and political organizations begin fighting to control it, and courts and government agencies then act as arbiters.

While sometimes the resulting rules are "a tour de force of political creativity", more often they are simply inappropriate to the new forms of the technology which gradually emerge. Similarly, we must not make the mistake of applying old laws or old legal concepts to new technologies.

The Deputy Minister in the Prime Minister’ Office, Datuk Mohammad Nazri gave the analogy of the trespass into a private house to rebut my proposal that unauthorised access without malice and without causing damage should not be made a criminal offence.

This is one example of applying old legal concepts to new technologies. I am not questioning the concept of property rights in the computer world but there is a need to examine the new problems which have been created by new technologies.

Let me state here again that when I refer to hacking, I am making a distinction between hacking and cracking, the latter referring to malicious computer intrusion.

The term "hacker" had not originally referred to a computer criminal, but can signify the free-wheeling intellectual exploration of the highest and deepest potential of computer systems. Hacking can involve the heart-felt conviction that beauty can be found in computers and that the fine aesthetic in a perfect program can liberate the mind and spirit.

As I said yesterday, the founders of Apple Computers, Steven Jobs and Steve Wozniak, were once hackers in their student days.

I am making a proposal to amend the Computer Crimes Bill to give the court the discretion to dismiss a prosecution where unauthorised access is without malice and has caused no damage - which will make a clear distinction between hacking and cracking.

This is for the following reasons:

Firstly, in the world networked by computers, unauthorised computer access without malice and without causing damage cannot be fully analogised to the minor trespass into private homes without committing theft or other offences. This is because the harm that could be caused by lax security in private home is likely to be limited to the subject of the trespass, while computer intrusions could lead to a whole series other intrusions in other computer systems.

Secondly, computer security systems are very lax, not only in Malaysia but in advanced countries like the United States and the United Kingdom, and financial losses which could be caused by malicious computer intrusions are astronomical.

The government should raise the standards of computer security system and even seriously consider introducing the concept of "downstream liability". Under this concept, computer networks whether banks or financial institutions which have lax computer security systems allowing easy computer intrusion and theft of data which result in intrusion of the computers of other organisations causing enormous damages should be held liable for the consequential losses of other computer networks.

Thirdly, a computer whizz-kid who could test computer security systems by exposing security holes - with no malice and causing no damage - would be doing not only the host computer system a service but to the general public as well, as with electronic commerce growing apace, lax computer systems could cause enormous losses to members of the public as well.

By giving the court the power to dismiss prosecutions in the case of unauthorised access which is without malice and which has caused no damage, we will be giving space and room for the development of such computer whizz kids in Malaysia.

If the amendments that I have tabled are accepted, we would in fact be sending out two messages: Firstly, that Malaysia is serious about computer crimes in having the most severe penalties for computer crimes in the world. Secondly, that we want to create the atmosphere to produce "awesome creativity" among Malaysians so that they could develop world-class content for the Information Superhighway - and pave the way for Malaysia to become an Information Superpower in the 21st century.

Another amendment which I will be proposing is to empower the court to order a convicted offender to pay compensation to the victim for any damage caused to his computer, program or data - which would make the Computer Crime Act even more comprehensive.

The Chairman of Backbenchers Club and Joint Chairman of the Parliamentary IT Committee, Ruhanie Ahmad, had yesterday urged the Opposition to impose the Whip to get all MPs to support the Computer Crimes Bill.

All MPs and political parties including opposition parties support the Computer Crime Bill although we may disagree as to how to enact the best computer crime law in the world.

In the IT era, we need new approaches and attitudes, one of which is to move away from the hierarchical system to one of empowerment and decentralisation. This means withholding the Whip rather than imposing the Whip.

Let us empower MPs first before we talk about empowering the people through Information Technology in the Information Society, by allowing MPs a free vote on the Computer Crimes Bill, particularly over the six amendments to be moved during the Committee stage.

As there is no disagreement over having a Computer Crime Act, I call on the Barisan Nasional Government to join the Opposition to remove the Whip in the debate and voting for the Computer Crime Bill to give every MP the freedom to take his or her stand - as to whether to support or oppose all or some of the six amendments which I would be proposing to the Computer Crime Bill.


*Lim Kit Siang - Malaysian Parliamentary Opposition Leader, Democratic Action Party Secretary-General & Member of Parliament for Tanjong