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Copying subscription-specific secure data onto a new account identifier is an offence under section 474.10(2) 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. Subscription-specific secure data was copied from an account identifier, whether by you or someone else
  2. You intended by your conduct for the data to be copied onto something that:
  • Was an account identifier, or
  • Would, once the data was copied onto it, be capable of operating as an account identifier

It is immaterial whether you knew which particular account identifier the data would be copied from.

‘Subscription-specific secure data’ is that which is used, or capable of being used, to allow:

  1. A carrier to identify a particular mobile telecommunications account, or
  2. A mobile telecommunications device in which an account identifier that contains the data is installed to access the public mobile telecommunications service to which the account relates.

It is immaterial whether the telecommunications account existed or could be set up in the future.

An ‘account identifier’ is something that:

  1. Contains subscription-specific secure data, and
  2. Is installed, or capable of being installed, in a mobile telecommunications device or anything else that allows a particular mobile telecommunications device to be identified, and is prescribed by the regulations as an account identifier.

This includes a SIM card.

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 operated the facilities used, or to be used, in the supply of the public telecommunications service to which the subscription-specific data relates
  2. You were an employee or agent acting on the carrier’s behalf
  3. You were acting with the carrier’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.

Duress and necessity are defences to the charge.