A UK teenager is awaiting a jury`s verdict in an Internet virus attack case that features the defence plea that his computer was taken over by unknown persons, and also has a strange South African link.
The case against Aaron Caffery accuses him of an electronic attack against the Port of Houston that crippled its Web-based servers on 21 September 2001. The prosecution alleges this was a result of a misdirected attack meant for a South African Internet chat room user called "Bokkie", who made anti-American comments following the 11 September terror attacks in New York.
According to TheRegister.co.uk, Port of Houston NT server computer logs traced the attack back to Caffrey`s computer and he was arrested in January 2002. British police found attack scripts and a transcript of an IRC conversation Caffrey had around the time of the attack.
TheRegister reports that the judge in the case said no one disputed that the attack came from Caffrey`s computer, but that the jury had to decide whether Caffrey committed the crime or whether someone else used his PC to do so. The jury also needed to consider who wrote the attack script found on Caffrey`s computer.
Relevant in SA
Caffrey`s defence also has some relevance in SA, where there is no precedent for claims of 'computer hijacking`.
In cases such as the one currently under way against the alleged Absa hacker, it is not yet clear whether actual use of a computer by the suspect would have to be proved in the event of a crime.
"In order to be successful in the UK and SA, the prosecutor will be required to prove the elements of the crime beyond all reasonable doubt," says Steven Ferguson, of SA law firm Nicci Ferguson. "The defendant is entitled to raise any defence that may raise sufficient doubt in the minds of the judge or jury. However, any defence must be supported by sufficient evidence in order to be successful and the Caffrey defence is novel, but will be difficult to prove."
"The prosecution may find it difficult to prove beyond reasonable doubt that the defendant was actually sitting behind his computer and may have to rely on circumstantial evidence," says Francis Cronje, of e-law firm Buys Inc. "But you can still win a case using circumstantial evidence."
Legal differences
The UK Computer Misuse Act of 1990 provides that the hacker`s intent to cause damage need not be directed at any particular computer or system. If he or she illegally lets loose a Trojan or some other form of virus and it causes damage, he or she will be criminally liable.
"SA computer crime provisions in the ECT Act are fairly open and capable of a similar interpretation," says Ferguson. "It will be interesting to see what the effect will be on the current law when the cyber crime convention is finalised."
SA, along with many other countries, has also been plagued by a number of viruses, known as worms or Trojans, which have the ability to allow someone else to take over another computer covertly and without the owner`s permission.
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