Possessing or Controlling Data or a Device With Intent to Modify a Telecommunications Device Identifier

Possessing or Controlling Data or a Device With Intent to Modify a Telecommunications Device Identifier is an offence under section 474.8 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 control data or any thing, and
2. You intended by doing so for the data or thing to be used by you or another person to modify a telecommunications device identifier, or interfere with the operation of a telecommunications device identifier.

A ‘telecommunications device identifier’ is an electronic identifier of a mobile telecommunications device that is:

1. installed in the device by the manufacturer; and
2. capable of being used to distinguish the device from other mobile telecommunications devices.

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 manufactured the device into which the identifier was installed
2. You were an employee or agent acting on the manufacturer’s behalf
3. You were acting with the manufacturer’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.

It is not an offence to attempt but fail to commit the offence.

Duress and necessity are defences to the charge.