Electronic Evidence

Singapore's Approach

The advent of electronic commerce and the use of the digital medium as an alternative to the physical tangible 'world' have given rise to an urgent need to render admissible and enforceable evidence in the form of electronic record and data. Storage of digital information and data raises the legal issue of whether computer output of such information and data can be used in evidence. This article proposes to discuss the approach taken by Singapore in relation to electronic evidence. The writer has, where applicable, referred to developments in the US, UK and Australia.

Many offices in Singapore, including law offices, have embraced the practice of printing out hard copies of computer data, such as e-mail, and keeping them in their files in the belief that such paper documents are admissible in court as primary evidence under the best-evidence rule. Few have any system put in place to ensure that the information in the computer is properly retained and accessible so as to be usable for subsequent reference without alteration. Is such belief justified? Such practice risks the hard copy being inadmissible as evidence or being attributed less weight. How does one prove the existence and reality of the metaphysical world of cyberspace in a court of law? In the faceless world of cyberspace, identity and authentication are important issues, particularly in e-commerce. In most cases, the only evidence of the agreement between the parties will be documents evidencing the transaction. Problems will, therefore, arise where such documents are computer generated.

Computer evidence is ephemeral or transitory; easily altered, usually without leaving trace or sign of such alteration. The source or authenticity of computer evidence used in electronic commerce cannot be verified by tests applied to 'paper' evidence. This is further complicated by the fact that computer/electronic data evidence is usually generated by complex systems.

Evidence in Singapore - General
When civil proceedings or criminal prosecutions come before the court, the tasks involved in the dispute resolution are the application of selected rules applicable to the matter and proof of the facts on which the applicability of the rules depend.1 The law of evidence governs, inter alia, the proving of such facts, their relevancy, admissibility and weight of each proven fact.

The primary source of the law of evidence in Singapore is the Evidence Act (Cap 97) ('the Act'). It is acknowledged that the Act is not exhaustive. All rules of evidence not contained in any written law so far as they are inconsistent with the provisions of the Act have been repealed (s 2(2)). By implication, rules of common law are still applicable so long as the Act is silent or ambiguous.2 Similarly, other written laws on evidence continue to be applicable.

The Act applies to 'judicial proceedings in or before any court' in respect of both civil proceedings and criminal prosecutions. In the case of the latter, there are other provisions contained in the Criminal Procedure Code (Cap 68).

The Act makes a distinction between 'relevancy' and 'proof'. A fact is said to be relevant to another when it is connected to the other in any of the ways referred to in the provisions of the Act (s 3(2)). A fact is proven 'when, after considering the evidence before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists' (s 3(3)).

Evidence is broadly categorised as falling within two main classes - direct and hearsay. The basic common law principle is that direct evidence is admissible whereas indirect or hearsay evidence is not. The main argument against admissibility of computer evidence is that it is hearsay or secondary evidence. There are, however, exceptions to the rule.

Computer Evidence
The law of evidence in the UK has recognised three types of computer-generated documentary evidence. The first is 'real evidence', such as calculations or analyses generated by the computer itself through the running of software and the receipt of information from other devices, for example, built-in clocks and remote sensors. Real evidence is admissible as direct evidence.3 In 1981, Professor Smith, writing on computer evidence, developed the ideas put forward in The Statue of Liberty [1968] 1 WLR 739 and crafted a rule which was later accepted by the courts.

Where information is recorded by mechanical means without the intervention of a human mind, the record made by the machine is admissible in evidence, provided of course, it is accepted that the machine is reliable.4

Secondly, there are documents and records produced by the computer which are copies of information supplied to the computer by human beings. This evidence is treated as hearsay. Thirdly, there is derived evidence which is information that combines real evidence with the information supplied by human beings to form a composite record. An example is the figure in the daily balance column of a bank statement, since this is derived from 'real evidence' (automatically generated bank charges) and individual cheque and paying-in entries (supplied by human beings). This is also treated as hearsay evidence.5

The definition of 'computer' under the Act is wide enough to include the system of communication known as the internet. The Act defines 'computer' to mean:

an electronic, magnetic, optical, electrochemical, or other data-processing device, or a group of such interconnected or related devices, performing logical, arithmetic or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices ... . [s 3(1)]

Excluded devices are set out in s 3(1)(a) to (d).

'Computer output' or 'output' has been defined to mean 'a statement or representation (whether in audio, visual, graphical, multimedia, printed, pictorial, written or any other form) - (a) produced by a computer; or (b) accurately translated from a statement or representation so produced' (s 3(1)).

Contents of any documents may be proved by primary evidence (that is, the document itself) (ss 63 and 64) or by secondary evidence (such as copies of the original document) (s 65). Secondary evidence has been defined to mean and include 'copies made from the original by electronic, electrochemical, chemical, magnetic, optical, telematic or other technical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies' (s 65(b)).

Documents must be proved by primary evidence except in cases where secondary evidence is allowed (s 66). Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence, inter alia: (a) when the original has been destroyed or lost (s 67(1)(c)); (b) when the original is of such a nature as not to be easily movable (s 67(1)(d)); or (c) when the law allows a certified copy to be given in evidence (s 67(1)(f)).

Internet communication, such as electronic mail, comes within the definition of computer output and constitutes a form of electronic documentary evidence.

Singapore Evidence Law and the IT Revolution
To make Singapore competitive and nurture growth and participation in the new global economy, the government has aggressively embraced Information Technology. The government established TradeNet6 in January 1989 utilising the Electronic Data Interchange ('EDI') system. In order to support the introduction of EDI in the TradeNet system, the government began to put in place the requisite legislative framework. Provisions in the Goods and Services Tax Act (A31/1993),7 the Regulation of Imports and Exports Act (Cap 272A)8 and the Customs (Amendment) Act (A24/1996)9 were enacted from 1993 onwards to provide for TradeNet.

The legal issues, which are relevant to an EDI system compared to the traditional paper-based system, are as follows:

The Evidence (Amendment) Bill was introduced in Parliament on 5 December 1995, passed on 18 January 1996 and the Evidence (Amendment) Act ('Amendments') came into force on 8 March 1996.10 Order 63A of the Rules of Court was introduced on 8 March 1997 to provide for 'Electronic Filing and Service'.11 The national newspaper of the day described the Amendments as paving the way for the admissibility of computer-generated evidence and the use of information technology in court.12

The Amendments
The rationale
The Minister for Law13 in moving the Second Reading of the Bill in Parliament explained:

These amendments provide for the admissibility of information stored in computers, and the use of information technology in our courts ... . The use of personal computers at home and in the office is now commonplace, as is the linking of such computers to form vast networks that allow information to be entered, stored, altered and retrieved by a host of users in a global environment. Developments in document imaging technologies have also enabled users to keep images of their paper documents in electronic media, thereby allowing them to save storage costs as the paper originals could then be destroyed. The law has, therefore, to be updated to facilitate the wider use of these new technologies. Such a law, of course, has to strike a balance between guaranteeing the reliability of evidence produced by such technologies and ensuring the admissibility of such evidence is not hampered by complicated conditions and procedures.

The Amendments were made for the following purposes:14

  1. to provide for the admissibility and weight of computer output produced by any computer or network as evidence in both civil and criminal proceedings;
  2. to enable rules to be made for the filing and receiving of evidence in court by the use of information technology (electronic filing);
  3. to allow accurate reproductions of documents produced by electronic, electrochemical, chemical, magnetic, optical or other technical processes to be admissible as secondary evidence;
  4. to allow voluminous or complex evidence to be given in the form of charts, summaries or computer output in both civil and criminal proceedings; and
  5. to allow evidence to be given by live video or television links in certain civil proceedings.

Large institutions, such as the Inland Revenue Authority of Singapore (as it is now known), have already implemented document-imaging technology for processing of taxpayers' returns. Many transactions are now conducted online, in particular through the use of TradeNet. The Technology Court has been set up, and many other public and private sector institutions are working through electronic networks and dispensing with paper transactions and documentation.

An illustrious committee headed by the Dean of the Law Faculty, and comprising members of the judiciary, Attorney General's Chambers, Ministry of Defence Legal Services and Nanyang Technological University, drafted the Amendments. The committee reviewed legislation from Australia, Canada, Malaysia, New Zealand, South Africa, the UK and the US. The judiciary, the National Computer Board (now the Infocomm Development Authority), the Auditor General, the Ministry of Information and the Arts and the Ministry of Finance (Budget Division) were consulted. The Law Society of Singapore and the Institute of Certified Public Accountants ('ICPAS') were also consulted and their views were incorporated in the final draft of the Bill.15

The provisions

Admissibility of computer output

The amended ss 35 and 36 of the Act provide for three different ways to admit computer output as evidence in court: (a) by way of express agreement between the parties to the proceedings (or between the Public Prosecutor and defence counsel); (b) by showing that the computer output was from an 'approved process' (where the network is independently audited); and (c) by showing that, in a particular case, the computer output was from a source that was working properly at all material times. The amendments have emphasised relevance which had always been the key to the issue of admissibility of any evidence.

The first method of admitting electronic/computer evidence is by way of express agreement which can be made at any time even in the course of proceedings in court (s 35(1)(a)). However, in criminal proceedings where a lawyer does not represent the accused, such evidence cannot be admitted by agreement
(s 35(2)(a)). This is to forestall any allegation that the prosecution tricked the accused into agreeing to admit such evidence.16 Such agreement can also be vitiated by proof of duress, fraud, misrepresentation or mistake (s 35(2)(b)). The express agreement is that neither the authenticity nor the accuracy of the contents of the computer output in question is disputed.

The second method is by way of computer output produced in an 'approved process' (s 35(1)(b)). A presumption arises that the output is accurate unless proven otherwise. Such process is approved when it is checked ('audited') and certified by an agency (called the 'certifying authority') that is appointed by the Minister in accordance with the regulations.17

The third method is where the party tendering the computer output is required to show - through an affidavit and certificate from the Systems Operator or Information System Manager - that there is no reason to doubt the truth or reliability of the output and that, at all material times, the system was operating properly or, if not, that the accuracy of the output was not adversely affected (s 35(1)(c)). Where there is no Systems Operator or Information System Manager available, the section allows an expert with access to the system to provide the necessary certification.

Where a certificate is produced, s 35(9) provides that it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. The safeguard is that such person who knowingly makes a false statement in the certificate or does not reasonably believe that the statement is true, is guilty of an offence punishable on conviction by a fine or imprisonment term not exceeding two years or to both (s 35(11)).

Any computer output tendered in evidence and duly authenticated shall not be inadmissible as evidence of proof of the contents of the original document merely on the ground that (s 35(10)):

The court may, if it is not satisfied with the accuracy of the output, call for further evidence by affidavits or oral examination of the relevant operators or persons
(s 36(1) and (2)). Evidence by affidavit may also be given by an independent expert appointed or accepted by the court (s 36(2)(e)). The court may, if it thinks fit, call for the oral evidence of the deponent of an affidavit or the issuer of the certificate concerning the accuracy of the computer output (s 36(3)).

Guidelines have also been provided on the weight of evidence to be attached to any computer output tendered as evidence under the amended s 35. The court is to have regard to all the circumstances from which inference can be reasonably drawn as to the accuracy, or otherwise, of the computer output (s 36(4)).18

Electronic filing and Technology Court
Complementing the information technology thrust, a new s 36A was inserted in the Act to enable the Supreme Court Rules Committee to make rules to provide for the filing and receiving of evidence and documents in court by the use of information technology. This enabled the legal framework to be constructed for electronic filing of court documents and the installation of the Technology Court.19 Order 63A of the Rules of Court allows the Registrar to establish an electronic filing service whereby specified documents may be filed, saved, delivered or otherwise conveyed by electronic submission through a network service provider.20 Only registered users are authorised to use the Electronic Filing System ('EFS').21

Video link testimony
A new s 62A allows a witness with leave of the court to give evidence through a live video or television link in civil proceedings if: (a) the witness is below 16 years of age; (b) it is expressly agreed between the parties to the proceedings that evidence be so given; (c) the witness is outside Singapore; or (d) the court is satisfied that it is expedient in the interest of justice to do so (s 62A(1)). The court must not make such an order for video link testimony or include a particular provision in such an order if to do so would be inconsistent with the court's duty to ensure that the proceedings are conducted fairly to the parties to the proceedings (s 62A(5)).

Secondary evidence
The definition of secondary evidence was extended in s 65(b) to include computer output to ensure proper operation of the other admissibility sections.22

By way of explanation, new Illustration (c) states that:

... a copy of a document in the form of a print-out, or image on a monitor screen, retrieved from a magnetic or optical storage device, such as tape, hard disk, laser disc or CD-ROM, is secondary evidence of the contents of the document if it is shown that the copy retrieved from the storage device satisfies the conditions providing for the admissibility of such output. [emphasis added]

This amendment ensures the admissibility of such output as secondary evidence where the conditions for the use of such evidence is justified, for example, where the original document has been destroyed.23

Manner of giving voluminous or complex evidence
A new s 68A was inserted to facilitate the use of multimedia technology in the Technology Court in the presentation of voluminous or complex evidence.24 An important safeguard which has been built into the provision is that any relationship among facts or opinions asserted in the presentation of such complex materials must be subsequently proved by evidence that is otherwise independently admissible.

The Electronic Transactions Act (Cap 88)
Whilst the computer output provisions of the Act address the admissibility of the outputs, the issue of identity and authentication over the internet had not been specifically addressed. The EDI provisions, which address the issues of identity and authentication, are limited to the Singapore TradeNet network.

Transmission of messages over the internet, which is 'a network of networks', is inherently insecure.25  There are risks of non receipt by the intended recipient, access by an unintended person or organisation, change to the contents during transit, receipt of a false message and wrongful denial.26

To reinforce the legal framework for e-commerce transactions in Singapore, the Singapore Parliament enacted the Electronic Transactions Act (Cap 88) ('ETA'),27 inter alia: (a) as a commercial code to support e-commerce transactions; (b) to provide for Public Key Infrastructure ('PKI'); and (c) to enable electronic applications. The ETA addresses the issues of authentication of a person's identity and the integrity of electronically transmitted documents. It clearly spells out the general rule that no discrimination is to be practised between traditional forms of writing and signatures and their electronic counterparts.28 The ETA has identified and specifically qualifies digital signature as a form of secure electronic signature. The four levels of security specified in the ETA are 'electronic signature',29 'secure electronic signature', 'digital signature'30 and 'secure digital signature'.

To provide for the highest level of security currently available on the internet, the ETA has put in place the PKI which addresses the four elements of security, namely authentication, integrity, non repudiation and confidentiality.31 Provisions on trusted third parties, known as certification authorities, reinforce the operation and effectiveness of the PKI.32

The provisions of the ETA and the amendments to the Act have enhanced the admissibility and weight of electronic evidence/computer output and facilitated the functioning of the Technology Court.

The Computer Misuse Act (Cap 50A)
The Computer Misuse Act was amended in 1996 and 199833 to make provisions for securing computers, computer programs and data stored in computers from unauthorised access, modification, interference and interception. The provisions of the Computer Misuse Act have been aggressively enforced to ensure the security and integrity of computers, their data and output.34 These complement and complete the provisions of all the abovementioned amendments and Acts to establish a comprehensive legal framework for the use of electronic evidence in court.

Conclusion
At the birth of the new millennium dawns a new age of the all-pervasive information technology world. Global and local commerce will increasingly be conducted (and documents stored) electronically, with paper documents, if any, destroyed thereafter. Singapore is thus far positioned to meet the paradigm shift with its legislation and infrastructure in place. Implementation, however, is another matter.

Apart from 'closed networks' - such as TradeNet, some government offices using EDI and banks and a limited number of institutions using Secure Electronic Transactions ('SET') and Secure Sockets Layer ('SSL') protocols - most transmissions and communication by Singapore internet users are insecure. There is a need for education in the use of and more nationwide adoption of the PKI.

Pretty Good Privacy ('PGP') is a good security software freely available on the World Wide Web (www.pgpi.org). PGP, however, like PKI, requires parties to the system to utilise private and public key-pair and maintain a key-ring. This requires a little more sophistication and savvy in the use of computers and the internet. Except for 'closed networks', such as Local Area Networks ('LAN') and Wide Area Network ('WAN') which make it easier to implement, Singapore as a whole has been slow on the uptake.

In Singapore, the man in the street, small and big businesses, will have to discard the old 'paper-based' way of conducting their affairs and businesses and quickly adopt the new methods of communication over the internet and 'electronic' record documentation and storage. Secure systems and procedures will have to be put in place, if possible, under the charge of a systems operator or information system manager to ensure that the information in the computer is properly retained and accessible so as to be usable for subsequent reference without alteration. This is a quantum leap and mindsets take time to change. Security, authentication, integrity and non repudiation of such communication have to be constantly borne in mind, as such documentary evidence in electronic form will have to be adduced in court to enforce contractual and other legal rights. This applies particularly to persons involved in the practice of law.

Merely printing and filing of hard copies of computer output/documents are, therefore, wholly inadequate and face the risk of being inadmissible as evidence or being attributed less weight in court. In the US case of Armstrong v Executive Office of the President35 the legal status of e-mails in the White House was considered. The court determined that simply printing out the text that appeared on the screen could not preserve e-mail records. The court further concluded that the electronic version contained a great deal of additional information, such as the date of transmission, date of receipt, detailed listing of recipients and linkages between messages sent and replies received, that was not contained on the screen print. For this reason the print-out could not even be considered a copy of the original version under the Federal Records Act.36

In closing, mention needs to be made of the use and importance of 'electronic discovery' in court proceedings. With the ever-growing use of computers as business and communication tools, data generated and stored electronically is becoming an increasingly important target for discovery. As with all other discovery, the goal is to find useful information and collect it in a manner that assures it can be admitted into evidence. This practice is gaining popularity among US lawyers.

Deleted or not, a universe of e-mail, draft documents and messages exists in retrievable form in the computers' hard drives and archival tapes, awaiting discovery by lawyers seeking anything to support their clients' claims or to discredit adversaries' witnesses. Many companies, however, have failed to integrate this knowledge into their document management policies. In the US, electronic discovery in legal cases has become a mini-industry,37 with the discovery process itself having increasing impact on the outcome of litigation.38

Lawyers in Singapore need to take note of this development and perhaps integrate this practice into their litigation processes and management.

Chua Siak Kim
Wee Swee Teow & Co

Endnotes

1 Chin Tet Yung, Evidence (1988) Butterworths p 4.
2 Ibid p 5.
3 3 The Statue of Liberty [1968] 1 WLR 739, per Simon P; R v Maqsud Ali [1966] 1 QB 688; and R v Spiby [1990] 91 Cr App R 186. Similarly, the Singapore case of Public Prosecutor v Ang Soon Huat [1990] SLR 915 on s 35 of the Act (before amendment Act A8/1996). The High Court held, inter alia, that '[t]he computer printouts of the results of the chromatograph and spectogram tests were real evidence as the computers not only recorded but also processed and calculated the information fed into them and oral evidence had been given in regard to these matters'.
4 4 JC Smith, 'The admissibility of Statements by Computer' [1981] Crim LR 390. The Court of Appeal in R v Spiby quoted this statement with approval.
5 M Chissick and A Kelman, Electronic Commerce Law and Practice (2000) Sweet & Maxwell p 171.
6 TradeNet is the first nationwide Electronic Data Interchange system for trade administration. Launched by the Singapore Trade Development Board, TradeNet enables the electronic submission of import/export declarations and applications for certificates of origin to be exchanged using EDI technology (www.tradenet.gov.sg).
7 Section 42 provides for the establishment of a computer service by the Comptroller and enables a registered user to make and serve an electronic notice by electronic submission without delivery of any equivalent document or counterpart in paper form. Subsections (5) and (6) provide for admissibility of an electronic notice without delivery of the paper equivalent. Some of the provisions were inspired by ss 122A and 122B of the Australian Commonwealth Customs and Excise Act 1901. These sections were inserted by the Australian Customs and Excise Legislation Amendment Act 1990 (No 111 of 1990). See Comparative Table GST Bill under cl 40
(now s 42).
8 Section 2 provides for 'use of computer service', 'electronic notice' and that 'any reference to a document or record shall include ... (a) document or record kept on any magnetic, optical, chemical or other medium'. Section 8 provides for admissibility of 'an electronic notice or a copy thereof ... without the making or delivery of any equivalent document or counterpart in paper form'.
9 Amended to allow books of account, registers, stock books and other records to be preserved or kept by such means as the Director General of Customs and Excise may approve. This allows records to be kept in electronic or other forms. Such records, or documents forming part of the records, will be admissible in evidence in accordance with the Evidence Act (Cap 97).
10 Commencement Notification S87/1996.
11 The Supreme Court of Judicature Act (Cap 322), the Rules of Court 1996 amended vide S86/1997.
12 The Straits Times, 19 January 1996.
13 Prof S Jayakumar, Parliament No 8, 18 January 1996. The relevant part of the speech has been quoted at some length as it expresses the spirit and thrust of the amendments, hence providing an insight into the understanding and interpretation of the amendments (sprs.lawnet.com.sg).
14 As enumerated by the Minister for Law at the Second Reading in Parliament (ibid).
15 Charles Lim AC, 'Information Technology and the Law of Evidence - Recent Legislative Initiatives' 1997 9 SAcLJ Part I 120.
16 Similar provisions may be found in s 376 of the Criminal Procedure Code (Cap 68) (vldb.lawnet.com.sg).
17 Evidence (Computer Output) Regulations (S93/1996) made by the Minister under s 35(5) of the Evidence Act (Cap 97) (vldb.lawnet.com.sg).
18 In particular, regard shall be had to: (a) whether or not the information which the output reproduces or is derived from was supplied to the computer, or recorded for the purpose of being supplied to it contemporaneously with the occurrence or existence of the facts dealt with in that information, if such contemporaneity is relevant; and (b) whether the supplier of the information or any person involved in the processing of such information had any incentive or motive to conceal or misrepresent the information so supplied.
19 The Technology Court was launched on 8 July 1995 with an integrated audio-visual system, a litigation support system for presentation, a computer-based recording transcription system and a video-conferencing system. See Ord 63A Rules of Court 1996. Practice Direction No 4 of 2000 entitled 'The Technology Courts', passed on 1 July 2000, contains amendments to the Supreme Court Practice Directions (1997 Ed) which set out the procedures to be followed and the fees to be paid for using the facilities provided in the Technology Courts.
In its Court Vision 21, the subordinate courts have launched a Court of the Future project, to showcase information technology products and applications relevant to the courts, such as video-conferencing, multimedia products and applications, digital audio recording and computer-aided transcription, pen-based computing, voice recognition transcription services and judicial research and litigation support software (www.gov.sg/judiciary/subct/technology/court/ctv21.html).
20 Order 63A r 2 Rules of Court.
21 Phase 2 of EFS was launched on 2 July 2001. Besides the extract service and service of document facility, this Phase witnessed the migration of EFS from a Windows-based client server system on a private EDI network to a Web application running on the internet. With Phase 3 implementation on 18 December 2001, originating summons, district court appeals, appeals to the Court of Appeal, taxation of costs, interpleader summons and admission of advocates and solicitors will come under EFS.
22 Section 65(b) of the Act provides that secondary evidence means and includes '(b) copies made from the original by electronic, electrochemical, chemical, magnetic, mechanical, optical, telematic or other technical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies'.
23 Ibid s 67: 'Cases in which secondary evidence relating to documents may be given'. Compare the Australian Commonwealth Evidence Act 1995 which abolishes the secondary evidence rule altogether and avoids any reference to an 'original' document. It no longer requires an original of a document to be tendered in preference to a copy. Instead, ss 47 and 48 define 'document' and then provide for methods of adducing evidence. As a result, all documents are now admissible, but it is left to the courts to determine the weight given. Dawson J in Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 stated, in relation to electronic records, 'some modes of proof are better than others, but that ... goes to weight rather than admissibility' (www.qlrc.qld.gov.au/wp52.html and www.uq.edu.au/~laadavid/cyberlaw/july1999.html).
24 Section 68A was modelled after s 50 of the Australian Commonwealth Evidence Act 1995.
25 In the US case of American Civil Liberties Union et al v Janet Reno 929 F Supp 824 (ED Pa, 1996), the US Court of Appeals for the Third Circuit noted that 'the internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks' (www.aclu.org/court/cdadec.html).
26 Roger Clarke, 'Message Transmission Security Risks' 11 May 1998 (www.anu.edu.au/people/Roger.Clarke/II/CryptoSecy.html).
27 The ETA was passed on 29 June 1998 and became law on 3 July 1998. The Minister brought the ETA into force on 10 July 1998 (S369/1998).
28 This is found in Part II (on electronic records and signatures) and Part IV (on electronic contracts) ETA.
29 Defined in s 2 ETA.
30 Ibid ss 2 and 19.
31 Ibid Parts VI and VII.
32 Ibid Parts VIII and X.
33 Act 8 of 1996 and Act 21 of 1998.
34 In the case of Public Prosecutor v Muhammad Nuzaihan bin Kamal Luddin [2000] 1 SLR 34, the Chief Justice sentenced a 17-year-old student - who pleaded guilty to three charges of unauthorised access to computer material, unauthorised modification of the contents of a computer and unauthorised access to a computer service under ss 3(1), 5(1) and 6(1)(a) - to four months' imprisonment. The Chief Justice expressed the serious view taken by the courts in respect of computer-related offences in these words:
Policy considerations, the far-reaching effects which the offences have on the public interest if their pervasion is not halted at an early stage, and the seriousness with which Parliament views cybercrime, all mandated the imposition of a custodial sentence.
35 1 F 3d 1274 (District of Columbia Circuit Court of Appeals, 1993) (www.citizen.org/litigation/briefs/ERecords/articles.cfm?ID=620).
36 Compare s 35(10) of the Evidence Act.
37 For example, Electronic Media Discovery ('EMD') Assistance, Computer Forensics, Dockery Associates, LLC (evidence.finder.com/pro.html).
38 Geanne Rosenberg, 'Electronic Discovery Proves Effective Legal Weapon' (telecom.canisius.edu/cf/electronic_discovery.htm).