The government has moved to close a loophole in the law
that could have led to IT staff being jailed for up to five years
for viewing or copying files containing child pornography during a
legitimate investigation.
New proposals to be included in the forthcoming Sexual Offences
Bill will allow IT staff and internet service providers to remove
or copy illegal images from the internet without risking
prosecution if it is in the course of an investigation.
Making copies of indecent images of children is illegal under the
Protection of Children Act 1978 and, until now, there has been no
defence in law for IT staff investigating company systems.
Richard Starnes, vice-president of the Information Systems Security
Association, said the new proposals would give IT professionals
more certainty when conducting investigations.
"If investigators who were looking into a case were found to have
child pornography linking to the case on their systems, it is
unlikely they would have faced prosecution," he said. "But that is
the sort of thing that gives corporate lawyers sleepless nights, so
it is better to be in black and white."
However, the proposals do not take into account IT staff viewing
child pornography by accident, warned Starnes.
"One of the things with the law is that there is no mens rea
[intent] required for prosecution," he said. "It never hurts to
talk to your corporate lawyer before starting these
investigations."
ISP group London Internet Exchange (Linx), which made
representations to the Home Office to change the Bill last month,
welcomed the new proposals.
"Until now, we have had to choose to either leave the images online
while the police made copies to use as evidence, or remove them
immediately and risk prejudicing a prosecution," said Malcolm
Hutty, regulation officer at Linx.
The 1978 Act needed to be updated because modern crime reporting
methods, such as e-mail or even floppy discs, inherently involve
creating a copy, Hutty said. IT and ISP staff could risk up to 10
years in prison just for e-mailing an illegal image to the police,
he said.
"A systems administrator who investigates a complaint about child
pornography on a website hosted by an ISP could face prosecution if
they moved the images to another location to preserve evidence for
a police investigation," Hutty said.
"It is even a crime for ISP staff to call the police in and show
them an illegal image because copying the image to the screen is
itself illegal."