Possessing or Controlling Data or a Device With Intent to Copy an Account Identifier

Possessing or controlling data or a device with intent to copy an account identifier is an offence under section 474.11 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You possessed or controlled data or any thing, and
2. You did so intending for the data or thing to be used by you or another person to:

• Copy subscription-specific data from an account identifier, which is an offence under section 474.10(1), or

• Copy subscription-specific data onto an account identifier, which is an offence under section 474.10(2).

‘Data’ is information in any form, including any program or part of a program.

To ‘possess or control’ data means to:

1. Possess a computer or data storage device that holds or contains the data
2. Possess a document in which the data is recorded, or
3. Control data held in a computer in the possession of another person whether inside or outside Australia.

‘Subscription-specific secure data’ is that which is used, or capable of being used, to allow:

1. A carrier to identify a particular mobile telecommunications account, or
2. A mobile telecommunications device in which an account identifier that contains the data is installed to access the public mobile telecommunications service to which the account relates.

An ‘account identifier’ is something that:

1. Contains subscription-specific secure data, and
2. Is installed, or capable of being installed, in a mobile telecommunications device, or anything else that allows a particular mobile telecommunications device to be identified and is prescribed by the regulations as an account identifier.

This includes a SIM card.

A ‘mobile telecommunications device’ is an item of customer equipment used, or capable of being used, in connection with a public mobile telecommunications service.

A ‘public telecommunications service’ is one whereby:

1. an end user can use a carriage service while moving continuously between places
2. the device is not in physical contact with any part of the telecommunications network, and
3. the service has intercell hand-over functions.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions.

You are not guilty of the offence if you establish ‘on the balance of probabilities’ that:

1. You were a carrier that operated the facilities used, or to be used, in the supply of the public telecommunications service to which the subscription-specific data related
2. You were an employee or agent acting on the carrier’s behalf
3. You were acting with the carrier’s consent
4. You were a law enforcement, intelligence or security officer acting in the course of your duties, and your conduct was reasonable in the circumstances for performing those duties, or
5. You were otherwise authorised by law to engage in the conduct.

Duress and necessity are defences to the charge.