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We believe that because Section 3 of the Computer Misuse Act 1990, as amended by the Police and Justice Act 2006, allows us to prosecute someone who obtains, is selling or uses an illegal botnet, we can meet the concerns of the Committee. Our supplementary memorandum to the Committee set out the legal position as we see it. However, it may be useful to also add that the problem has always been that illegal use is being made of articles that have a legitimate use. A small collection of remotely controlled software (and therefore identical in nature to bot software) may be held, for example, for security testing purposes or academic research, and should not necessarily be criminalised. The CMA, as amended, has not therefore criminalised lawful position of bots for such purposes.

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