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So, the act states an individual has to know the access is "unauthorised". How is this proven by the state? Of course, for a simple act like entering a username/password that they know they're not supposed to be in control of is easy.

But, what about more complex cases? If, say, there is a dispute about whether access is or isn't authorised, and one party(Say an employer) has given another a password, without any existing evidence anymore, how do they prove this? Do they just take the general approach of 'Would a reasonable person deem this as unauthorised'?

Does external evidence get taken into account, for example, conversations indirectly linked to the account? Or would, say, a lack of explicit links to a password be deemed as unauthorised?

To clarify: My question was essentially how is it proven? For theft, there is the 'would a reasonable person deem is dishonest'. Whereas, there's no real evidence of what test there is for unauthorised. How do they determine the mens rea? However, there was also an element, I suppose, which was what elements can be shown as a a defence that the access was authorised? Would it be solely explicit statements saying 'You have access to the computer'. Or would various implicit statements also be used?

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    I think this question should not be closed as a duplicate. The question is not -- as I read it -- about how courts resolve factual disputes in general, but rather how about the contours of a specific element of a specific offense.
    – bdb484
    Apr 8 at 22:02
  • The extant answer presupposes that meaning, and that is how I understood it, especially with the emphasis on "how do they prove", not "what are the elements of 'unauthorized'?". If that was not OPs original intent, it could be re-written.
    – user6726
    Apr 8 at 23:30
  • Yeah, it's reads kind of on the border between the asking about elements and asking about evidentiary rules, I think. Hearing from OP would be helpful.
    – bdb484
    Apr 9 at 1:39
  • @bdb484 Tried to edit my question to clarify it a little.
    – SpoiltAroma14
    Apr 9 at 23:12
  • Possible duplicate of How do you prove a fact at issue in litigation.
    – feetwet ♦
    Apr 15 at 2:57

2 Answers 2

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The way any other contested fact is determined

Each side introduces evidence, the trier of fact weighs the evidence and decides if the prosecution/plaintiff has met their burden: beyond reasonable doubt for a criminal matter or on the balance of probabilities for a civil one.

Evidence is anything that is probative and relevant and not excluded by the rules of evidence.

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For "unauthorised access" you have to prove two things: One, that I did indeed access your computer, and that it wasn't someone else. Two, that the access was indeed not authorised.

As an example where the second may have unexpected outcomes: A woman whose job it was to use her computer to print lottery tickets (that store customers paid for) printed about $1,000 worth of tickets for herself without payment. In court it was found that this was absolutely 100% theft, but that she was indeed authorised to access the computer.

On the other hand, if James Smith leaves his company, all his access rights are supposed to be revoked, but IT revokes Jimmy Smith's access rights by mistake, then it can be argued whether James is still authorised to access his computer, and whether Jimmy is indeed not authorised, for example if Jimmy uses a colleague's password to access the data that are his job to access.

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  • In your first example, she might have been authorised to access the computer, but that's not what the Act says. Undoubtedly she was not authorised "to causes a computer to perform any function with intent to secure access to any program or data".
    – user35069
    May 16 at 14:16
  • She went to court accused of theft and unauthorised access to a computer, and found guilty of the theft but not of the unauthorised access. I think there was a phase where anything involving a computer got such accusations.
    – gnasher729
    May 16 at 18:25

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