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Can you go to jail for installing tracking apps on your BF or GF's phone?

5 months ago ade

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It is the age of the internet. Everyone is connected to everyone else. Or at least, our devices with our personal information are.

In such a time, the methods we can use to gain information about other people has become more diverse. You can "check out" someone's profile on Facebook or "follow" them on Instagram and Twitter.

Naturally, this romance of the Internet can be seen in romantic relationships as well. In a relationship (or possible relationship), the Internet can be a treasure trove of information about your beloved other half.

But what if you feel that is not enough? What if you were to hack or secretly access her or his smartphone without their authorization - Can you be jailed for this?


First, what is "Hacking"?

When we think about hacking, most of us may think of the hacker group Anonymous and many other technologically difficult feats of cyber crime ingenuity.

In actual fact, it may not be as complicated as we think. According to Cambridge Dictionary Online, hacking is “the activity of illegally using a computer to access information stored on another computer system or to spread a computer virus.”

This is similar to what the Computer Crimes Act 1997 has termed unauthorized access:

For the purposes of this Act, a person secures access to any program or data held in a computer if, by causing a computer to perform any function, he—

a) alters or erases the program or data;

(b) copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held;

(c) uses it; or

(d) causes it to be output from the computer in which it is held whether by having it displayed or in any other manner

But hang on, the law talks about computers. What if I accessed my partner's information on a phone or tablet?

The Computer Crimes Act also clearly defined some key points on what is a computer, stating:

“computer” means an ... data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, storage and display 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, but does not include ... similar device which is non-programmable or which does not contain any data storage facility

Basically, what this means is that a smartphone or tablet, by the definition above, is considered a computer and unauthorized access covers any information on the device that was accessed without the original party’s permission, regardless of whether you are using it against them or you are merely viewing the information.

So putting these two points together - along with the assumption that you can't or don't actually perform Anonymous-level hacking - determining wether or not you hacked your partner's device will largely hinge on one thing - Were you given the password?


If you gave them your password, you also gave them permission

In "Cyber Crimes: Lessons from the Legal Position of Malaysia and Iran", Manap and Taji explain unauthorized access as referring to "a person who definitely has no right over the computer system or database, get access without permission from the owner. In order to prove one’s access is unauthorised, the intention of the computer’s owner has to be made clear."

So in general circumstances, giving someone your password carries the implication that you have also given them permission to access your device - if you didn't want them to access it then you shouldn't have given them the password in the first place.

But of course, it should also be clarified that knowing the password isn't the same as being given the password.

Picture this. Let’s say you have a curious partner whom, by pure honest-to-goodness coincidence, happened to look over your shoulder and see you entering your password. So, he or she now knows how to access your device or account. Does this count as authorization?

It would not. You did not specifically tell them your password. You may not even have been aware that they were looking. It also goes without saying that they also can't use this password to gain access and download an app that would allow them to spy on your everyday activities.

So, now you may be thinking, "If I didn't authorize my partner by giving them my password, that means they violated my right to privacy, correct? Can I sue them for invasion of privacy?"

Well, hold up a little there.


Suing is hard, but the offender can (possibly) be put in prison

handcuffed.jpg

While we're not saying that it isn't an invasion of privacy, you might have trouble suing for this as the Tort (reason for legal action) of invasion of privacy has so far only been applicable on the grounds of a woman's modesty (refer here and here).

[READ MORE: What is a Tort?]

But not to worry, if your device was accessed without your authorization, you can still get the authorities to take action by making a police report… for which there's a punishment if found guilty.

Section 3(3) of the Computer Crimes Act -

A person guilty of an offence under this section shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Which means, if the authorities finds the person guilty of hacking, they can either throw them in prison for up to 5 years, fine them up to RM50,000, or jail and fine them just for good measure.

You may be wondering, what if you didn’t lock your device and your partner accesses your social media contacts and messages - Is this illegal as well?

Yes, it is indeed illegal. If you were to check the Penal Code, you will notice a clause known as Criminal Trespass which states:

441. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

While the punishment for this may not seem as heavy as hacking, it can still be pretty daunting with imprisonment of up to six months and/or a fine of up to RM3,000 if found guilty.

In case you're thinking, "But isn't property, real estate?" Property doesn't just refer to real estate or land, but refers to means "a quality or trait belonging and especially peculiar to an individual or thing"" (as defined by Merriam-Webster). In essence, anything that is owned by someone is known collectively as property, which includes smartphones and tablets.

Kindly refrain from hacking your boyfriend's or girlfriend's smartphone.

While it would be highly unlikely that such an incident would lead to police reports (as it can be settled privately within the relationship) please consult a lawyer if any legal proceedings have been taken against you.

If you are the wronged party however, and the perpetrator argues that implied consent was given, you may want to consider issuing a cease and desist letter - again, seek out a lawyer for further advice.

Or you could also just, you know, change your password and not give it out in the first place.


This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.
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