The Parliamentary committee which is overhauling the 2015 Cybercrimes Act is leaning toward an amendment which would criminalise the possession of skimmers and card readers without lawful justification, a compromise to the recommendations which the Major Organised Crime and Anti-Corruption Agency (MOCA) made for section 10 of the Bill.

In its May 2021 submission to Parliament MOCA had proposed criminalising the possession of skimmers/card readers, magnetic stripe cards, extracted credit card (BINS) contents, and point of sale devices without lawful excuse.

The agency had argued that section 10 potentially includes these devices, but that, to be criminalised, the possession of said devices must be in the context of committing or facilitating the commission of any of the offences listed in sections three to nine of the Act.

At Thursday’s meeting of the joint select committee principal director for information and communications technology in the Ministry of Science, Energy and Technology Kaydian Smith-Newton explained that MOCA’s concerns are addressed in the redraft of section 10 of the Bill, making it an offence for a person to — without lawful justification — intentionally manufacture, sell, import, distribute, disclose, or otherwise make available any data or device that is designed or adapted primarily for the purpose of committing an offence under sections three to nine of the Act.

The 2015 Bill doesn’t contemplate lawful justification.

However, the legal minds suggested that MOCA should look to other pieces of legislation and the national security ministry if it wants items such as point of sale devices and magnetic stripe cards to be included in the list of items people are prohibited from having without lawful excuse.

“For you to have a skimmer or card reader you would have had to have some permission to have those, so if you’re found with it, then one would expect that you’d be able to present the permission that would have allowed you to have it in the first place. If it is that you can’t, then prosecution could take place, [but] to the extent that MOCA may have desired to have other things covered within the ambit of unlawful possession, we are saying that doesn’t exist now — any prohibition that would prevent someone from having these things so that you would be able to say the mere possession of these things would be a problem or that you would be a person who would have it without lawful justification,” she explained.

Customs law currently prohibits credit card scanning equipment without import licence or permit or approval of the national security minister.

At the same time, Smith Newton noted that it should be borne in mind in the prohibition of certain items that balance has to be struck between the potential good use of these devices and potential criminal use.

“We are of the view that that discussion is better placed within the current regulations or orders that deal with that as opposed to try to change the scheme of what we have under the cybercrimes legislation,” she said.

Opposition Senator Peter Bunting pointed out that with the advancement of technology, such as chip and virtual cards, it would not be prudent to specify certain devices and methodologies used in the commission of cybercrimes in the legislation.

“So it doesn’t seem to me that we should try and go after the particular instruments being used for fraud now. It’s better we go after the intent,” he said.

“Sounds logical to me,” committee chairman and minister of technology Daryl Vaz agreed.

Member of Parliament for St Elizabeth South Western and minister without portfolio in the Office of the Prime Minister Floyd Green also indicated his acceptance of the recommendation, noting that a balance had to be struck. “While it may not have gone to the extent that MOCA would have wanted it to, it does provide sufficient ground and basis for them to act in the instances that they are looking to act,” he said.

The committee is scheduled to reconvene on November 24.