Computer crimes.

- Free Online Library

III. STATE APPROACHES
(200.) See Cole Durham, The Emerging Structures of Criminal Information Law: Tracing the
Contours of a New Paradigm New Paradigm
(139.) Sissler, 1991 U.S. Dist. LEXIS 16465, at *11.
Other statutes have been useful in prosecuting computer-related crimes falling outside the
Computer Fraud and Abuse Act. Computer-related crimes can be charged under at least forty
different federal statutes.(61) The following discussion provides a brief overview of the statutes most
commonly used to prosecute computer-related crimes which are not covered by the Computer Fraud
and Abuse Act.(62) Such offenses range from theft of computer software to unauthorized access of a
computer system without causing damage.(63)
(180.) Several venue provisions are particularly broad. See, e.g., Ga. Code Ann. [sections] 16-9-94(4)
(1992) (venue exists for violations committed " [i]n any county from which to which, or through
which any use of a computer or computer network was made, whether by wires, electromagnetic
waves, microwaves, or any other means of communication").
(128.) 18 U.S.C. [sections] 2511(4)(b) (1994). Interception of a radio communication that is not
scrambled and is intended for retransmission Retransmission might refer to:
(222.) American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), prob. jurist A judge
or legal scholar; an individual who is versed or skilled in law.
directly with computer-related crime."
). The cost of hacker crimes are more difficult to gauge, since many companies-particularly banks-
decline to report computer intrusions for fear of losing consumer confidence. M.J. Zuckerman,
Computer Crimes Surge: Companies Fear Losing Privacy, Customers Trust, USA Today, July 2, 1996,
at IA. For example, a 1996 Senate survey of 500 major corporations garnered only 236 replies, but
found that 58 percent of respondents reported computer break-ins during the preceeding year.
Nearly 18 percent reported losing over $1 million in the attacks, and more than 66 percent suffered
losses of over $50,000. Twenty-two percent of the reported attacks were attributed to industrial
espionage industrial espionage
(153.) Alaska Stat. [sections] 11.41.270 (Supp. 1994); Mich. Comp. Laws [sections] 750.411(h)(e)(vi);
Okla. Stat. tit. 21, [sections] 1173 (Supp. 1995); Wyo. Stat. [sections] 6-2-506 (Supp. 1994).
A key escrow system is where the government or designated third party maintains a "key" which will
decode encrypted material from a given program or piece of hardware.
Montgomery County, Arkansas
(application, communications) electronic funds transfer - (EFT, EFTS, - system) Transfer of money
initiated through electronic terminal, automated teller machine, computer, telephone, or magnetic
tape. services across Europe). See also Larry Lange, Trust a Hacker Under 30? You'd Better, Elec.
Engineering Times, Aug. 19, 1996, available in 1996 WL 11550843 (An estimated $800 million was
lost by banks and other corporations due to attacks on their computer systems. An example of which
is Russian programmer Vladimir Levin Vladimir Levin is a Russian individual famed for his
involvement in the attempt to fraudulently transfer US$10.7 million via Citibank's computers. The
commonly known story tampering with Citibank's computer system and transferring ten million
dollars to various bank accounts around the world).
Defendants convicted of criminal copyright infringement are sentenced under [sections] 2B5.3.(114)
The base offense level is six.(115) If the retail value of the infringing items exceeds $2,000, then the
offense level is increased by the corresponding number of levels from the table in [sections]
2F1.1.(116)
(57.) Morris, 928 F.2d at 507. Morris argued that he had no intent to create a virus which would
harm computer networks; he only intended to create a program which would spread innocuously
through the network to many computers. Id. His experiment went awry, however, when the program
began to duplicate itself uncontrollably, crashing thousands of computers. Student Tells How "Worm
" Went Wild, L.A. Times, Jan. 19, 1990, at A4.
(security) key escrow - A controversial arrangement where the keys needed to decrypt encrypted
data must be held in escrow by a third party so that government agencies can system.(214) Key
escrow systems have been under near continuous attack from both the general public and
Congress.(215) It is therefore highly probable that the 105th Congress will revive proposed
legislation which would ease export regulations for encryption technology and prohibit the use of a
key escrow system.(216)
In the U.S., any commercial transaction or traffic that crosses state boundaries or that involves more
than one state. Government regulation of interstate commerce is founded on the commerce clause of
the Constitution (Article I, section 8), which or communications and affecting any computer.(35)
Second, the threshold requirement of "unauthorized access" has been removed.(36) As a result, the
class of those potentially liable has been expanded to include, among others, company insiders and
users of computer networks who were arguably arguable
adj.
1. Open to argument: an arguable question, still unresolved.
`crack' these security measures, a process that takes some time and effort.
former federal maximum security penitentiary, near San Francisco; "escapeproof." [Am. Hist.:
Flexner, 218]
2. countries have amended their legislation to address four needs created by computer crimes: (1)
protection of privacy; (2) prosecution of economic crimes; (3) protection of intellectual property; (4)
and procedural provisions to aid in the prosecution of computer crimes.(191) Worldwide, national
governments are adopting computer-specific criminal codes that address unauthorized access and
manipulation of data, similar to the Computer Fraud and Abuse Act of 1986 in the United
States.(192) Criminalization criminalize
tr.v. criminalized, criminalizing, criminalizes
1. To impose a criminal penalty on or for; outlaw.
(166.) Branscomb, supra note 158, at 35. See, e.g., Cal. Penal Code [sections] 502(b)(10) (Deering &
Supp. 1995) ("computer contaminant contaminant /contaminant/ (kon-tamin-int) something
that causes contamination.
pecuniary adj. relating to money, as in "pecuniary loss.
Mitnick was convicted in the late 1990s of illegally gaining access to computer networks and
stealing intellectual property.
a. Offenses Under the Statute
(I) an organization operating under section 25 or section 25(a) of the Federal Reserve Act.
(64.) Copyright Infringement Act, 17 U.S.C. [sections] 506(a) (1994). See generally Intellectual
Property article in this issue. For a historical overview of the development of criminal copyright law
through 1992, see United States v. LaMacchia, 871 F.Supp. 535, 538-540 (D. Mass. 1994).
1. Computer Abuse Amendments Act of 1994
The police also were not obligated to inspect the computer and disks at
1 In political science, see federal government.
Another defense to charges under either the.1986 Act or the 1994 Act is that the requisite $1,000
loss did not occur. Neither the 1986 Act nor the Morris decision articulate how to calculate this
loss.(53) However, in United States v. Sablan,(54) only those losses directly resulting from the
defendant's criminal activity were included. The Sablan court measured the direct losses, which
amounted to over $20,000, by a "reasonable estimate" given the "available information," and
utilizing a valuation based on the damaged business' normal business charges.(55) Even if a dollar
value can be attached to a loss, there is still some question whether the government can aggregate
losses or whether there must be $1,000 worth of damage at one particular site.(56)
Damages for violations of any subsection other than subsection
(G) the Securities Investor Protection Corporation Securities Investor Protection Corporation (SIPC)
There are no "typical" computer-related crimes and no typical motive for committing such crimes.(6)
Computer criminals can be teenage hackers, disgruntled employees, mischievous technicians, or
international terrorists.(7) However, classifying computer-related crimes by considering the role the
computer plays in a particular crime is possible.(8)
(35.) Compare the 1994 Act (amending [sections] 1030(a)(5) to apply to " [whoever] through means
of a computer used in interstate commerce or communications, knowingly causes the transmission
of a program, information code or command to a computer or computer system . . . .") with the
1986Act ([sections] 1030(a)(5) read "[whoever] . . . accesses a Federal interest computer . . . and . . .
alters. damages or destroys information in any such computer. . . ."). (36.) Compare the 1994 Act
(amending [sections] 1030(a)(5) to apply to "[whomever whomever
pron.
The objective case of whoever. See Usage Note at who.
II. FEDERAL APPROACHES
Comparing the experiences of other nations can assist with evaluating the success of American
computer crime proposals. The Netherlands, for example, passed a strict anti-hacker code in
1992.(202) Dutch computer crime police reported that the number of cases they had to handle
doubled from 1991 to 1992.(203) The Dutch law's approach focuses on unauthorized access to
secured computer systems. By excluding unsecured systems, the law provides incentives to improve
computer security. The penalties provided by the Dutch code vary, depending upon the severity of
the intrusion.(204)
A. Defining Computer Crime
C. Prosecution of Computer-Related Crimes
B. Conflict Between Federal and State Laws
relating to relate prep -> bezglich +gen, mit Bezug auf +acc national defense or foreign
relations Foreign relations may refer to:
institution's operation or the Government's operation of such computer; or
(97.) See M.A. Stapleton, As Hacker Ranks Grow, Justice Department Aims to Take a Byte Out of
Crime, Chi. Daily Law Bull., May 15, 1996, at I (reporting Department of Justice response to
increased incidents of computer crime). For a profile of some prominent cases involving the Internet,
see Michael Meyer & Anne Underwood, Crimes of the `Net', Newsweek, Nov. 14, 1994, at 46. In the
largest enforcement action to date, "Operation Sundevil Operation Sundevil was a 1990 nation-wide
United States Secret Service crackdown on "illegal computer hacking activities". Along with the
Chicago Task Force and the Arizona Organized Crime and Racketeering Bureau, they conducted
raids in Austin, Cincinnati, Detroit, Los Angeles, ," the Department of Justice and the Secret Service
launched a nationwide crackdown on telephone and credit card fraud Credit card fraud is a wide-
ranging term for theft and fraud committed using a credit card or any similar payment mechanism
as a fraudulent source of funds in a transaction. The purpose may be to obtain goods without paying,
or to obtain unauthorized funds from an account. involving stolen card numbers and customer
access codes from national telephone and credit card computer networks. See Marc Rotenberg Marc
Rotenberg is a law professor and the Executive Director of the Electronic Privacy Information Center
(EPIC). He teaches at Georgetown University Law Center. He has won a number of awards,
including the EFF Pioneer Award in 1997, the Norbert Wiener Award for Social and , Let's Look
Before We Legislate, Computerworld, Oct. 21, 1991, at 25 (identifying problems with the U.S. Justice
Department's proposed amendments to federal computer crime laws); Mark Lewyn & Evan I.
Schwartz, Why `The Legion of Doom' Has Little Fear of the Feds, Bus. Week, Apr. 15, 1991, at 31
(describing setbacks in indicting suspects identified through "Operation Sundevil"). The
investigation covered 14 cities and resulted in the seizure of some 23,000 computer disks. The first
conviction in this case did not come until February, 1992, when a suspect pleaded guilty to
possession of illegal telephone access codes. No other indictments were obtained because of the
difficulty of successfully prosecuting computer cases. Michael Alexander Michael Charles Alexander,
(November 20 1920 - December 19 2004), was a British Captain in the Special Boat Service, and a
German Army Prisoner of War held captive at Oflag IV-C. , Operation Sundevil Nabs First Suspect;
Defendant Pleads Guilty To Possession of Access Codes, Faces 10-Year Term, Computerworld, Feb.
17, 1992, at 15.
Retransmission (data networks), the resending of packets which have been damaged or lost
which is one of two or more computers used in committing the offense, not
A nonprofit corporation that insures customers' securities and cash held by member brokerage firms
against the failure of those firms. ;
The Telecommunications Act of 1996(88) was enacted to restructure the telecommunications
industry and encourage the rapid deployment of new telecommunications technologies. Title V of the
Telecommunications Act of 1996 is the Communications Decency Act See CDA.
d. Electronic Communications Privacy Act
Although federal computer crime laws were drafted to aid prosecutors, there have been few
indictments under these laws. The 1984 Computer Abuse Act resulted in only one prosecution.(90)
Between January 1989 and April 1993, there were only seventy-six convictions under 18 U.S.C.
[sections] 1030.(91) Of the fifty cases studied, more than half were convictions for general fraud
under [sections] 1030(a)(4).(92)
(186.) Note, Computer-Related Crime: An International Problem in Need of an International
Solution, 27 Texas Int'l L.J. 479, 494 (1992) [hereinafter Computer-Related Crime]. As more
companies advance into cyberspace for commercial purposes, the risk of infiltration from around the
world increases. A recent national survey of 150 security directors of major corporations indicated
that 98.6% of their companies had been victims of computer-related crimes. The largest reported
increases of criminal activity included cellular phone fraud and theft of confidential client
information and trade secrets from computer viruses and unauthorized access. Brian S. Akre, On-
Line Snoops SNOOPS - Craske, 1988. An extension of SCOOPS with meta-objects that can redirect
messages to other objects. "SNOOPS: An Object-Oriented language Enhancement Supporting
Dynamic Program Reeconfiguration", N. Craske, SIGPLAN Notices 26(10): 53-62 (Oct 1991). ,
Thieves Lurk To view the interaction in a chat room or online forum without participating by typing
in any comments. See de-lurk.
c. Mail and Wire Fraud
2. Other Statutes
John Montgomery (pioneer) (died 1794), U.S. pioneer in Tennessee
German prison ship in World War II. [Br. Hist. .(113)
(227.) Robert and Carleen Thomas were convicted of violating federal obscenity laws, 18 u.s.c.
[sections] 1462 and 18 U.S.C. [sections] 1465, as judged by Tennessee community standards. Their
BBS allowed paid subscribers who, inter alia [Latin, Among other things.] A phrase used in Pleading
to designate that a particular statute set out therein is only a part of the statute that is relevant to
the facts of the lawsuit and not the entire statute. , identified their home state as part of an
application process to connect to a California computer via modem and download sexually explicit
pictures, order explicit videotapes, and engage in sexually explicit on-line "chats." Id. at 704.
While a number of differences remain,(199) there are significant areas of convergence in national
legislation.(200) By defining specific new offenses and penalties, these codes avoid analytical
difficulties that arise when general criminal laws are applied to computer crimes. But even when
computer-specific criminal statutes are in place, prosecution in a number of industrialized countries
could continue to be hindered until the rules of evidence are adapted to computer crimes.(201)
(172.) Va. Code [subsections] 18.2-152.3 (Michie 1988 & Supp. 1995) (criminalizing the conduct of
one who uses a computer or computer network, without authority and with the intent to obtain
property or services by false pretense false pretense
n. Law
False representation of fact or circumstance, calculated to mislead.
Two members of a computer-based conspiracy to win radio contest prizes that included new cars
and trips to Hawaii were convicted in 1994. "Dark Dante," who led the conspiracy, pled guilty to
single counts of conspiracy, computer fraud, mail fraud, obstructing justice and money laundering,
and two counts of intercepting a wire communication. Guilty Plea Entered in Radio Contest
Conspiracy, L.A. Times, June IS, 1994, at B2. The second member, known as "Agent Steal," was re-
arrested after absconding prior to being sentenced for his computer crimes. He was sentenced in
November, 1995, to serve 41 months in a federal prison. Leslie Berger, Computer Hacker Who
Jumped Bail Gets 41 Months, L.A. Times, Nov. 28, 1995, at B5.
A more recent arrest occurred on September 11, 1995, where 6 computer hackers were charged
with stealing credit card numbers and cellular phone accounts. Their arrests, and the seizure of 20
computer systems, were the result of an eight-month sting operation Noun 1. sting operation - a
complicated confidence game planned and executed with great care (especially an operation
implemented by undercover agents to apprehend criminals) set up by the U.S. Secret Service.
Jeffrey Gold, Secret Service Nabs On-Line Data Thieves, WASH. POST, Sept. 12, 1995, at D2.
(109.) 18 U.S.C. [sections] 1030(b) (1994). Defendants convicted of [sections] 1030(b) violations
receive a base offense level from the guideline for the substantive offense, plus any adjustments
from such guideline that can be established as reasonably applicable. U.S.S.G. [sections] 2X1.1(a)
Additionally, [sections] 2X1.1(b) delineates possible reductions in the base offense level.
(188.) See generally Solomon, supra note 185 (reporting on the use of new computer technology as
an effective and dangerous mechanism exploited by international criminals).
IV. INTERNATIONAL APPROACHES
(168.) Branscomb, supra note 158, at 37. See, e.g., Wis. Stat. [sections] 943.70(2)(4) (Supp. 1995).
[French, from Old French areste, fishbone, spine, from Late Latin arista, awn, fishbone, from Latin,
awn. Assoc., Inc.,(171) the Fourth Circuit ruled that the section of Virginia's Computer Crimes
Act(172) covering reproduction of a copyrighted computer program was pre-empted by the Federal
Copyright Act;(173) thus, only the federal government could prosecute illegal copying of computer
software. In ruling for federal pre-emption of the Virginia Act, the court held that the state law's
mens rea requirement "does not add an element qualitatively changing the state claim from one of
unauthorized copying."(174)
Infiltration of international computer networks has also prompted greater private-sector
initiatives.(211) Currently, American computer companies have been restricted from exporting
strong security encryption programs(212) because they are considered an effective way for
terrorists and organized crime groups to communicate without fear of government
intervention.(213) In October of 1996, however, President Clinton issued an executive order
permitting companies to export stronger encryption systems. Controversially, the White House
established the condition that in the next two years the computer industry must develop a key
escrow In cryptography, placing a secret key into the hands of a trusted third party. See key
management.
For discussion of federal prosecution of computer crimes prior to 1984, see Note, Addressing the
Hazards of the New High Technology Workplace, 104 Harv. L. Rev. 1898, 1900-01 (1991)
(discussing inadequacies of prosecuting computer-related crime under traditional criminal statutes).
See also John Montgomery John Montgomery may refer to:
D. Ancillary Issues
Telecommunications Act (Canada)
a computer exclusively for the use of a financial institution or the United
(87.) See Brown v. Waddell, 50 F.3d 285, 294 (4th Cir. 1995) (holding that police officer's use of
clone pagers to intercept numeric transmissions received on digital display pagers violates
electronic communications privacy act); Organizacion JD LTDA LTDA Limitada (Portuguese; similar
to Limited Liability Company)
LTDA Limitada (Spanish)
LTDA London Taxi Drivers Association
LTDA Lower Tier Defended Area
LTDA Low Temperature Die Attach v. U.S. Dept. of Justice, 18 F.3d 91, 94-95 (2d Cir. 1994) (per
curiam [Latin, By the court.] A phrase used to distinguish an opinion of the whole court from an
opinion written by any one judge.
law, it is appropriate and desirable that a statute be enacted which deals
(14.) Hollinger & Lanza-Kaduce, supra note 5, at 103.
The middle of the Atlantic Ocean
(134.) Sawyer, 799 F.2d at 1508, n.15. Compare People v. Fleisher, 630 N.Y.S.2d 483 (1995) (finding
police did not exceed the scope of the warrant by searching the contents of a computer's internal
drive and external disks when the warrant only authorized taking possession of the property) with
Washington v. Riley, 846 P.2d 1365, 1369 (Wash. 1993) (invalidating as overbroad a search warrant
permitting the seizure of broad categories of computer records without specifying the crimes being
investigated).
The Mid-Atlantic Ridge
(207.) Durham, supra note 200, at 97 n.51 (citing efforts by the United Nations, the Council of
Europe Council of Europe, international organization founded in 1949 to promote greater unity
within Europe and to safeguard its political and cultural heritage by promoting human rights and
democracy. The council is headquartered in Strasbourg, France. and the OECD OECD: see
Organization for Economic Cooperation and Development. ).
Similarly, T-Online, another major Internet provider in Germany, responded to German prosecutorial
threats by banning subscriber's access to a Neo-Nazi website. See America Online Warned Over
Neo-Nazi Web Site, REC. N. N.J., Feb. 3, 1996, available in 1996 WL 6073558.
) and infra notes 146-168 and accompanying text (state statutes).
John Johnson (reporter), American television reporter and anchor
B. Types of Computer-Related Offenses II. FEDERAL APPROACHES
Punishment for an attempt to commit an offense is identical under this section to punishment for
commission of an offense.(45) The 1986 Act expressly grants investigatory authority to the United
States Secret Service, in addition to any other agency having such authority.(46)
(221.) The drive to curb on-line pornography gained added impetus from a widely-publicized but
highly controversial survey of pornographic material available in a variety of on-line fora. Marty
Rimm, Note, Marketing Pornography on the Information Superhighway: a Survey of 917,410 Images,
Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times in over 2000 Cities in
Fort,v Countries, Provinces, and Territories, 83 Geo. L.J. 1849 (1995). But see Howard Kurtz Howard
Alan Kurtz (born 1 August 1953 in Brooklyn, New York [1]) is an American journalist, , author and
media writer for the Washington Post.
(220.) Id.
introduction of fraudulent records into a computer system, the unauthorized
(legal) Communications Decency Act - (CDA) An amendment to the U.S. 1996 Telecommunications
Bill that went into effect on 08 February 1996, outraging thousands of Internet users who turned
their web pages black in protest. of 1996 ("CDA (1) (Compact Disc Audio) The compact disc file
extension that is seen on the computer in Explorer or some other file manager. CDA files are actually
pointers to the locations of the individual tracks on the CD medium. See CD-DA. "). The CDA
establishes new computer crimes. Under the CDA, a modem is a telecommunications device, and
under [sections] 223(a)(1)(B) obscene or indecent communications via such devices are criminalized.
In addition, [sections] 223 (d)(1) of the CDA criminalizes the use of an interactive computer service
to send or display patently offensive sexual or excretory excretory
adj.
Of, relating to, or used in excretion.
Malicious or criminal mischief--Damage must impair the utility of property or diminish its value.
Monetary value of damage due to computer break-ins is often negligible or impossible to determine.
(191.) Sieber,supra note 185, at 69-70.
the . . . residence because passwords and other security devices are often
, Pittsburgh Post-Gazette The Pittsburgh Post-Gazette, also known simply as the PG, is the largest
daily newspaper serving metropolitan Pittsburgh, Pennsylvania, USA. Early history , July 25, 1995, at
C4. In one of the most celebrated on-line criminal cases to date, prosecutors arrested Kevin Mitnick
Kevin David Mitnick (born October 6, 1963) is a controversial computer cracker and convicted
criminal in the United States.
of the section, other than a violation of subsection (a)(5)(B) [reckless
States Government, or, in the case of a computer not exclusively for such
Copyright 1997 Gale, Cengage Learning. All rights reserved.
(85.) 18 U.S.C. [sections] 2516 (1994). See United States v. McNulty, 47 F.3d 100, 102-103 (4th Cir.
1995) (holding that conversations on cordless telephone A cordless telephone or portable telephone
is a telephone with a wireless handset which communicates via radio waves with a base station
connected to a fixed telephone line (POTS) and can only be operated near (typically within 100
meters or 328 ft from) its base station are not communications protected by ECPA, and, thus, are
open to warrantless police monitoring); United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995)
(holding that caller identification service decoding electronic impulses to display telephone number
of receiving call was not protected by ECPA [subsections] 2510-2522). For a discussion on the
conflict between protecting data privacy while allowing for police monitoring of that data for
enforcement and national security reasons, see Marks, supra note I (noting that advances in
computer technology inevitably allow users to develop new techniques to outstrip patchwork
computer legislation). See also Arkin, supra note 63, at 9-11.
(160.) Branscomb, supra note 158, at 33. See, e.g., Idaho Code [sections] 18-2202(2) (1987) (liability
attaches to "[a]ny person who knowingly and without authorization alters, damages, or destroys any
computer, computer system, or computer network . . . or any computer software, program,
documentation, or data contained in such computer, computer system, or computer network"); Md.
Ann. Code art. 27, [sections] 146(c)(2) (1993) (proscribing acts which "[a]lter, damage, or destroy
data or a computer program").
As part of the Violent Crime Control and Law Enforcement Act The Violent Crime Control and Law
Enforcement Act (1994), also known as the Biden Crime Law, is a piece of legislation, sponsored by
Rep. Jack Brooks and supported by Sen. of 1994, the maximum monetary limitations on fines for
sentencing of computer-related crimes were eliminated from provisions in several federal statutes,
including the Computer Fraud and Abuse Act(104) Subsection (c) sets forth the punishment for an
offense under the Act. Punishment depends on which specific prohibited act was committed under
subsections (a) and (b).(105)
(204.) The Dutch law provides for six months' imprisonment for unauthorized access, up to four
years for unauthorized modification, and up to six years for breaking into systems that serve socially
important purposes, such as those of hospitals. James Daly James Daly may refer to:
against business frequent, costly, USA Today, Nov. 21, 1996, at 1A.
(59.) 92 F.3d 865 (9th Cir. 1996).
(215.) See generally, Electronic Privacy Information Council (visited Nov. 1, 1996).
The body of English law includes legislation, Common Law, and a host of other legal norms
established by Parliament, the Crown, and the judiciary. on Computer Evidence to be Reformed
Newsbyte News Network, July 14, 1995, available in WESTLAW, File No. 9329355 (discussing the
English Law Commission's recent recommendation that evidence extracted from computers be
accepted in the UK as a reliable source unless there is an obvious contrary indication; this could
directly benefit computer-specific prosecutions under the provisions criminalizing unauthorized
access and data modification).
2. For the presentation or determination of evidence: an evidentiary hearing.
1. Searches of Computer Records
(114.) U.S.S.G. App. A. See, e.g., United States v. Hicks Hicks , Edward 1780-1849.
(154.) Ala. Code [sections] 13A-11-8(b)(1)(a) (1994); 1995 Conn. Legis. Serv. 95-143 (West)
(amending 53a-183 to include Computer networks as a mode of Communication); Idaho Code
[sections] 18-6710 (3) (Supp. 1994); N.H. Rev. Stat. Ann. [sections] 644:4(11) (Supp. 1994); N.Y.
Penal Law [sections] 240.30 (McKinney Supp. 1995).
(135.) Sawyer, 799 F.2d at 1508.
c. Mail and Wire Fraud
It remains unclear, however, whether the logic of the Thomas decision also applies to prosecutions
involving the Internet. Despite noting the unique difficulties in verifying users' age and identity over
the Internet,(230) dicta Opinions of a judge that do not embody the resolution or determination of
the specific case before the court. Expressions in a court's opinion that go beyond the facts before
the court and therefore are individual views of the author of the opinion and not binding in
subsequent cases from the Philadelphia CDA opinion nonetheless concludes that Thomas would
allow for Internet prosecutions.(231)
(144.) This issue was considered in Steve Jackson Games, Inc. v. United States Secret Serv., 816 F.
Supp. 432 (W.D. Tex. 1993), aff'd, 36 F.3d 457 (5th Cir. 1994). The court ruled that the Secret
Service was in violation of the Act when it seized computer media, including floppy and hard disks,
because these materials were possessed in anticipation of communicating the materials to the
public. Id. at 440-41.
commerce; and that, while various forms of computer-related crime might
(115.) U.S.S.G. [sections] 2B5.3(a).
A preliminary injunction is regarded as extraordinary relief. because prohibiting transmission of
obscene or indecent communications via a telecommunications device or patently offensive
communications via an interactive computer service to a person under 18 violates the First
Amendment, and the terms "indecent" and "patently offensive" are so vague as to violate the free
speech and due process clauses); see also Shea v. Reno, 930 F.Supp. 916 (S.D.N.Y. 1996) (granting a
preliminary injunction because criminalizing the use of an interactive computer service to send or
display patently offensive materials, although not too vague, is unconstitutionally overbroad).
of the date of the act complained of or the date of the discovery of the
(82.) 18 U.S.C. [sections] 2701.
1. Expansion of the traditional concept of property. These statutes attack computer-related crimes
by expanding the traditional notion of "property" to include electronic and computer
technologies.(159)
Montgomery County, Iowa
Kurtz is the host of CNN's Reliable Sources and has written for The New Republic, the , A Flaming
Outrage; A `Cyberporn' Critic Gets a Harsh Lesson in '90s Netiquette (NETwork etIQUETTE) Proper
manners when conferencing between two or more users on an online service or the Internet. Emily
Post may not have told you to curtail your cussing via modem, but netiquette has been established to
remind you that profanity is not in good form over , Wash. Post, July 16, 1995, at C1 (noting the
controversy surrounding the Rimm study and a Time magazine editor's admission that "I screwed
up" in touting it), and Philip Elmer-DeWitt Philip Elmer-DeWitt (born September 8, 1949) is an
American writer and editor. He was Time 's first computer writer and produced much of the
magazine's early coverage of personal computers and the Internet. , Firestorm on the Computer
Nets: A New study of Cyberporn, Reported in a Time Cover Story, Sparks Controversy, Time, July 24,
1996, at 57 (noting that "serious questions have been raised regarding the study's methodology, the
ethics by which its data were gathered and even its true authorship). In addition, a Philadelphia
court reviewing the CDA estimated that only 0.1 percent of Internet addresses contain sexually
explicit content. Martin Flumenbaum and Brad S. Karp, The Communication Decency Act and the
Internet, N.Y. L.J., Aug. 28, 1996, at 3.
A term coined by economist Adam Smith in his 1776 book "An Inquiry into the Nature and Causes of
the Wealth of Nations". In his book he states:
The Mid-Atlantic States
Provisional Government of the Republic of China
Replication of a signal at a repeater
C. Sentencing
(25.) 18 U.S.C. [sections] 1030.
(103.) See United States v. Brady, 13 F.3d 334, 337 (10th Cir. 1993) (altered cellular telephones for
purposes of free riding on the cellular telephone system are not "access devices" within the meaning
of 18 U.S.C. [sections] 1029(a)); United States v. Sykes, 4 F.3d 697, 698 (8th Cir. 1993) (defendant
pled guilty to computer access fraud under 18 U.S.C. [sections] 1030(a)(4) for unauthorized use of
an automatic teller machine See ATM. ).
(146.) See Jerome Y. Roache, Computer Crime Deterrence, 13 AM. J. Crim. L. 391, 399-401 (1986).
The author catalogs traditional criminal law theories used to combat computer-related crimes and
demonstrates the ineffetiveness of each:
(24.) For a critique of the 1986 Act's limited utility, see Michael Todd Friedman, The Misuse of
Electronically Transferred Confidential Information Noun 1. confidential information - an indication
of potential opportunity; "he got a tip on the stock market"; "a good lead for a job"
steer, tip, wind, hint, lead in Interstate Commerce: How Well Do Our Present Laws Address the
Issue?, 4 Software L.J. 529, 548 n.107 (1991). See also A Measured Response, supra note 21, at 455-
456 (describing criticism leading to 1986 amendment).
c. Mail and Wire Fraud
and the conduct constituting the offense affects the use of the financial
2. That can be argued plausibly; defensible in argument: three arguable points of law. immune
under the 1986 Act because their access was authorized.(37) Finally, the 1994 Act criminalizes
certain types of reckless conduct in addition to intentional acts.(38) This may facilitate prosecution
of hackers who cause the transmission of malevolent malevolent
adj.
1. Having or exhibiting ill will; wishing harm to others; malicious.
(81.) 18 U.S.C. [sections] 2511(1)(e) (1994). It is not always clear which provisions of the ECPA
cover electronic communication such as electronic mail, which is both transmitted and stored. See
Steve Jackson Games, Inc. v. United States Secret Service The 1993 case of Steve Jackson Games,
Inc. v. United States Secret Service sprung from a raid by the U.S. Secret Service on the Austin
headquarters of Steve Jackson Games in 1990. , 36 F.3d 457, 458 (5th Cir. 1994) (holding that
government seizure of a computer used to operate an electronic bulletin board, and containing
private electronic mail that had been sent to (stored on) the bulletin board but not read (retrieved)
by the intended recipient, was not an "interception" under [sections] 2510 of the ECPA).
(50.) 928 F.2d 504 (2d Cir. 1991).
Laundering allows criminals to transform illegally obtained gain into seemingly legitimate funds.
.(188) In addition, the specter of computer terrorism(189) calls for an international strategy to
preserve global security.(190)
Political system that binds a group of states into a larger, noncentralized, superior state while
allowing them issue, as copyright law remains the exclusive domain of the federal
government.(170)
Despite efforts by both Congress and various state legislatures to address the many questions posed
by changing technology, a number of unresolved issues remain. Perhaps most notable is the fate of
the Communications Decency Act, or CDA.(217) Signed into law on Feb. 8, 1996, as part of the
Telecommunications ACt of 1 996,(218) the CDA makes it illegal to provide "indecent" or "patently
offensive" material in on-line areas accessible to minors.(219) Violators face Up to two years in
prison and a maximum $250,000 fine.(220) The CDA was originally targeted at on-line
pornography(221) but was immediately challenged in two suits(222) by a broad coalition of
businesses, librarians, and journalists who also feared prosecution.(223) The CDA was declared
unconstitutional in both Philadelphia and New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts,
Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario
and the Canadian province of district courts,(224) and the U.S. Supreme Court has agreed to
review the matter during its 1996-97 term.(225)
I. INTRODUCTION
(208.) The Business Software Alliance is a Washington, D.C. based organization funded by major
software publishers.
Altmark, the
(182.) See, e.g., State v. Rowell, 895 F.2d 232, 236-39 (N.M. Ct. App. 1995) (using a telephone and
dialing long-distance numbers with intent to defraud amounted to "accessing a computer" in
violation of N.M. Stat. Ann. [sections] 30-45-1 to 30-45-7 (Michie 1989)); Gallagher v. State, 618
So.2d 757, 758 (Flat Dist. Ct. App. 1993) (dissenting) ("exceeding one's authorized use" is not
proscribed PROSCRIBED, civil law. Among the Romans, a man was said to be proscribed when a
reward was offered for his head; but the term was more usually applied to those who were
sentenced to some punishment which carried with it the consequences of civil death. Code, 9; 49.
as "unauthorized access" under Fla. Stat. [sections] 815.06(1) (1993 & Supp. 1994)); People v.
Jemison, 466 N.W.2d 378 (Mich. Ct. App. 1991) (to "cause access to be made" to a computer within
the meaning of Mich. Comp. Laws Ann. [sections] 752.794 (West 1991) "requires more than merely
supplying information which ultimately finds its way into a computer system in the normal course of
business"); State v. Lindsly, 808 F.2d 727, 729 (Or. Ct. App. 1991) (investigatory expenses qualify as
pecuniary Monetary; relating to money; financial; consisting of money or that which can be valued in
money.
(216.) See The Promotion of Commerce On-Line in the Digital Era (Pro-CODE) Act of 1996, S.1726,
104th Congress (Bill to prohibit domestic key escrow proposals and permit exportation of encryption
technology for non-military end use).
computer-related crime are potentially astronomical; that the opportunities
excretory behavior
see elimination behavior. activities or organs to a person under age 18. Defenses to subsections (a)
or (d) include not creating the content of a communication although providing access or connections
and the absence of employer liability unless knowing or reckless. More limited defenses include
good faith, reasonable efforts to prevent communications access to minors, restricted access using
verified credit cards, debit accounts, adult access codes/indentification numbers or other FCC (1)
(Federal Communications Commission, Washington, DC, www.fcc.gov) The U.S. government agency
that regulates interstate and international communications including wire, cable, radio, TV and
satellite. The FCC was created under the U.S. described measures. The constitutionality of the
CDA was challenged in court immediately upon its being signed into law. At the time of this writing,
the cases are still at the district court level and the courts have held the CDA unconstitutional on its
face.(89)
The federal mail and wire fraud statutes(73) prohibit using interstate wire communications or the
mails to further a fraudulent scheme Noun 1. fraudulent scheme - an illegal enterprise (such as
extortion or fraud or drug peddling or prostitution) carried on for profit
illegitimate enterprise, racket to obtain money or property.(74) One commentator suggests that
these statutes would seem to apply to "any computer-aided theft involving the use of interstate wire,
the mails or a federally insured bank."(75) Several cases have so held.(76) Furthermore, any attempt
to obtain an unauthorized copy of a computer program in an intangible form may be covered by the
mail and wire fraud statutes.(77) However, district courts have divided on the issue of whether the
wire fraud statute reaches copyrighted material.(78)
Id.
James Daly (Irish Land League) (1838-1910) was an organizer of the first Irish Land League meeting
in 1879 and owner-editor of the Connaught
Chinese Soviet Republic
(46.) 18 U.S.C. [sections] 1030(d) (1994).
Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also
refer to a brief oral announcement ) (holding that governmental "entities" are subject to liability
under [sections] 2707(a) and remanding where appellants were intended recipients of electronic
fund transfers that were seized by DEA agents as proceeds of illegal money-laundering and narcotics
transactions), cert. denied, 114 S. Ct. 2679 (1994); see also United States v. Daccarett, 6 F.3d 37, 54
(2d Cir. 1993) (related case arising under the same facts holding that seizures of EFTs were not
"interceptions" under the ECPA because no "device" was used, as required by 18 U.S.C. [sections]
2510(4)), cert. denied 114 S. Ct. 1294 (1994); but see Tucker v. Waddell, 83 F.3d 688 (4th Cir. 1996)
(stating that the Act does not authorize a civil suit against a government entity for improperly
obtaining a customer's records).
10. "Taking possession." These provisions prohibit the act of assuming control over a computer
system and its contents without authorization.(168)
stated its purpose in passing its computer-related crimes statute:
"Every individual necessarily labours to render the annual revenue of the society as great as he can.
" of the market for computer security equipment will determine efficient levels of spending on
preventative measures to ensure against computer abuse); Gene Barton, Taking a Byte Out of Crime:
E-Mail Harassment and the Inefficacy inefficacy
n.
The state or quality of being incapable of producing a desired effect or result.
c. Mail and Wire Fraud
descrambler was not a violation of [sections] 2512(1)(b)).
assets are great; that computer-related crime has a direct effect on state
While the defendant in LaMacchia apparently did not attempt to sell copyrighted software, others
have. "One of the first successful criminal prosecutions involving network software copyright
infringement" involved an individual who sold illegal copies of Novell's NetWare network operating
system An operating system that is designed for network use. Normally, it is a complete operating
system with file, task and job management; however, with some earlier products, it was a separate
component that ran under the OS; for example, LAN Server required OS/2, and LANtastic required
DOS. . Bob Brown, Novell Helps Feds Win Case Against Copyright Violator, Network World, April 27,
1992, at 25; see also Barbara Carton, Man Charged in Software Piracy, BOSTON GLOBE, Sept. 1,
1994, at Econ. 41 (man charged with conspiracy and criminal copyright infringement for allegedly
distributing copyrighted software to his bulletin board subscribers).
(157.) Ark. Coded Ann. [sections] 5-41-106 (Michie 1993); Ga. Code Ann. [sections] 16-9-93 (1992);
Okla. Stat. tit. 21 [sections] 1955 (Supp. 1995); R.I. Gen. Laws [sections] 11-52-6 (1994). See Blue
Cross & Blue Shield of Connecticut, Inc. v. DiMartino, No. 30-06-42, 1991 LEXIS 1570 (Cone. Super.
Ct. July 2, 1991) (mem.) (plaintiff entitled to any actual damages Noun 1. actual damages - (law)
compensation for losses that can readily be proven to have occurred and for which the injured party
has the right to be compensated
compensatory damages, general damages suffered as a result of defendant's unauthorized removal
from computer system of thousands of pages of documents containing information concerning a vast
number of accounts, trebled because defendant's conduct was willful and malicious; however, no
recovery awarded because no actual damages proven).
;(28) (2) to obtain information in a financial record of a financial institution or consumer reporting
agency;(29) or (3) to manipulate information on a computer that would adversely affect(30) the
United States United States, officially United States of America, republic (2005 est. pop.
295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's
third largest country in population and the fourth largest country in area. government's operation
of the computer.(31) Section 1030(a)(4) of the statute prohibits accessing a "federal interest
computer" without or in excess of authorization and with intent to defraud To make a
Misrepresentation of an existing material fact, knowing it to be false or making it recklessly without
regard to whether it is true or false, intending for someone to rely on the misrepresentation and
under circumstances in which such person does rely on it to his or or obtain anything of value.(32)
WESTLAW is an interactive computerassisted legal research service that is provided to
subscribers by West Group, a subsidiary of Thomson Legal Publishing. , File No. 10098543 (banks
face new problem from computer "hackers" who break into Internet-access computers to steal
personal information about customers' debit cards that are being used to fraudulently withdraw
money from Electronic Funds Transfer See EFT.
2.
a. prosecution under state theft statute for unauthorized copying of computer software).
federalism
(16.) Computer trespass Computer trespass is a computer crime in Kansas, North Carolina,
Oklahoma, Pennsylvania, Rhode Island, Tennessee, Virginia, and Washington[1]. Virginia , or
"voyeurism," includes intentional, non-malicious, unauthorized access of computer files. Hollinger &
Lanza-Kaduce, supra note 5, at 103-04.
Morning daily newspaper. Established in 1881, it was purchased and incorporated in 1884 by
Harrison Gray Otis (1837-1917) under The Times-Mirror Co. (the hyphen was later dropped from the
name). , Sept. 20, 1996, at A25.
Internet security is the process of protecting data and privacy of devices connected to internet from
information robbery, hacking, malware infection and unwanted software. Links, Worldwide
Videotex videotex, communications service that is linked to an adapted television receiver or a
personal computer by telephone lines, cable television facilities, or the like, and that allows a user to
retrieve and display alphanumeric and pictorial information at home. Update, vol. 14, Nov. 1,
1995, available in WESTLAW, File No. 1995 WL 8118444 (security systems being developed by
corporations that block and check all incoming on-line traffic, and limit access to authorized users to
prevent criminal activity); UK-Chip Theft Recovery Service Offered, Newsbytes News Network, Aug.
25, 1995, available in WESTLAW, File No.9986610 (British organization will provide a hotline and
on-call replacement service to assist businesses in recovering more rapidly from the crippling theft
of computer components); CMG CMG Coastal & Marine Geology (USGS)
CMG Chipotle Mexican Grill, Inc. (stock symbol)
CMG Companion (of the Order Of) St Michael and St George
CMG Computer Measurement Group System Combats Moscow Mobile Phone Fraud, Newsbytes
News Network, Jan. 31, 1995, available in WESTLAW, File No. 2205434 (describing private
company's installation of a security system in Russia to prevent fraudulent cloning of mobile phones
and use of computer scanning systems to gain international access to cellular phone codes).
(230.) ACW ACW Arts Council of Wales (UK)
ACW Arts Council of Wales
ACW American Civil War
ACW Alliance for Computers and Writing
ACW Air Control Wing
ACW After Call Work (call centers) , 929 F. Supp. at 845-8.
notes 20-46 and accompanying text (federal computer statute includes offenses where computer is
an instrumentality Instrumentality
(6.) One commentator has identified six motives for committing computer-related crimes where
computers are subjects or objects of crime: (1) to exhibit technical prowess; (2) to highlight
vulnerabilities in computer security systems; (3) to punish or retaliate; (4) to engage in computer
voyeurism; (5) to assert a philosophy of open access to computer systems; and (6) to sabotage. Anne
W. Branscomb, Rogue Computer Programs and Computer Rogues: Tailoring the Punishment to Fit
the Crime, 16 Rutgers Computer & Tech. L.J. 1, 24-26 (1990).
In United States v. Sawyer,(132) a search warrant listing general categories of business records,
including "computer records and printouts relating to customer accounts, which are evidence and
fruits of, and the means of commission of violations of [certain U.S. statutes]," withstood Fourth
Amendment(133) scrutiny.(134) The court stated that the particularity particularity
n. pl. particularities
1. The quality or state of being particular rather than general.
I recently moved to nev.from abut have been going back to ca. every 2 to 3 weeks for med. . A
handful of states have criminalized threats and specifically included electronic communication under
"unconsented contact" in anti-stalking statutes,(153) and incorporated computers and electronic
communications devices into general telephone harassment statutes.(154) However, these statutes
may face significant constitutional challenges.(155)
(78.) See United States v. Wang, 898 F. Supp. 758, 759 (D. Colo. 1995) (denying motion to dismiss
charge of wire fraud because computer program, while intangible, is still property, and therefore
may possibly be prosecuted under both copyright act and wire fraud statute); but see LaMacchia,
871 F. Supp at 535, 540-544 (allowing motion to dismiss wire fraud charge that was based on use of
computer billboard to facilitate illegal copying of copyrighted computer software partially because
no plain congressional intent found for wire fraud statute to reach copyrighted material).
United States House Committee on the Judiciary
(223.) The 20 plaintiffs in ACLU v. Reno included Human Rights Watch, the Electronic Frontier
Foundation See EFF.
(140.) Id. at * 12 n.7.
(63.) Stanley S. Arkin et al., Prevention and Prosecution of Computer and Technology Crime, 3-20
(1991). For an analysis of how some statutes might be applied to computer crimes, see also Stephen
Fishbein, What Victims of Computer Crime Should Know and Do, N.Y. L.J., Nov. 12, 1993, at 1.
(175.) See Wisconsin v. Corcoran, 522 N.W.2d 226, 230-31 (Wis. Ct. App. 1994) (holding defendant
lacked any copyright protected by federal statute, and could be prosecuted and convicted under Wis.
Stat. [sections] 943.70 (Supp. 1994) for destroying data in programs he developed for his employer).
Noun 1. inefficacy - a lack of efficacy
inefficaciousness of Existing Law, 70 Wash. L. Rev. 465 (1995) (outlining the shortcomings of
existing laws attempting to combat computer harrassment).
Other states have recognized that catching and prosecuting computer criminals may be much more
difficult than preventing computer crimes. For instance, Nebraska's computer crime statute permits
potential victims of computer crimes to implement their own security measures Noun 1. security
measures - measures taken as a precaution against theft or espionage or sabotage etc.; "military
security has been stepped up since the recent uprising"
security .(156) Some states, such as Arkansas, Georgia, Oklahoma, and Rhode Island Rhode Island,
island, United States
Rhode Island, island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to
Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches. , have
statutes encouraging victims of computer crimes to come forward by providing a civil cause of action
for compensatory damages A sum of money awarded in a civil action by a court to indemnify a
person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of
another. .(157)
jurist n.
(96.) See Howard S. Dakoff, Note, The Clipper Chip Proposal: Deciphering the Unfounded Fears
That Are Wrongfully Derailing Its Implementation, 29 J. Marshall L. Rev. 475 (1996) (arguing that
security concerns warrant the implementation of key-escrow encryption technology, which includes
keys providing for government deciphering); Cf. Henry R. King, Note, Big Brother, The Holding
Company: A Review of Key-Escrow Encryption Technology, 21 Rutgers Computer & Tech. L.J. 224
(1995) (arguing that government controlled key-escrow proposals should not be implemented).
d. Electronic Communications Privacy Act
[dis- + gruntle, to grumble (from Middle English gruntelen; see or greedy employees have caused
far more damage.(5)
B. Types of Computer-Related Offenses
(224.) The Philadelphia court held the Act's indecency INDECENCY. An act against good behaviour
and a just delicacy. 2 Serg. & R. 91.
2. The law, in general, will repress indecency as being contrary to good morals, but, when
the public good requires it, the mere indecency of disclosures does not suffice to exclude provision
impermissibly impermissible
adj.
Not permitted; not permissible: impermissible behavior.
Faced with similar facts, a Connecticut court reached the opposite result. In Inset Systems v.
Instruction Set,(233) a Connecticut district court found that soliciting business via a web site,
accessible in, among other places, Connecticut, did establish sufficient contacts to give the court
jurisdiction over a Massachusetts defendant. Similar to the Connecticut decision is the Sixth
Circuit's opinion in CompuServe v. Patterson,(234) which held that using only the Internet to
negotiate a contract with the Ohio-based CompuServe did allow for Ohio jurisdiction over a Texas
defendant, even though he had never physically entered the forum state.(235)
9. Computer voyeurism Voyeurism
See also Eavesdropping.
(210.) This Lobby Speaks Software and Crimes a Big Stick, Bus. Wk., March 22, 1993, at 88.
of medical records] are limited to economic damages. No action may be
A college student who posted an electronic message on the Internet describing rape and torture of a
fellow student was arrested for transmitting threats across state lines. The dismissal of the case by
the district court has been appealed to the U.S. Court of Appeals for the Sixth Circuit. John Nolan
For a 19th century American congressman, see .
(193.) Taiwan and South Korea have indicted INDICTED, practice. When a man is accused by a bill
of indictment preferred by a grand jury, he is said to be indicted. companies for illegally copying
software for internal use Business Software Alliance, BSA 1. BSA - Business Software Alliance.
2. BSA - Bidouilleurs Sans Argent. World-Wide Report 1990-91, Sept. 1991. In Great Britain Great
Britain, officially United Kingdom of Great Britain and Northern Ireland, constitutional monarchy
(2005 est. pop. 60,441,000), 94,226 sq mi (244,044 sq km), on the British Isles, off W Europe. The
country is often referred to simply as Britain. , software piracy carries prison terms up to two years.
Business Software Alliance, United Kingdom: Software Piracy and the Law. Similar French laws also
provide for restitution, doubled penalties for repeat offenders, and court-ordered business closings
After advocating such measures for fifteen years, proponents of mandatory plant closing notification
secured federal legislation in August 1988 with the Worker Adjustment and Retraining Notification
Act, 100 P.L. 379. . Business Software Alliance, France: Software Piracy and the Law. Singapore
provides for up to five years imprisonment for illegally copying software. Business Software Alliance,
Singapore: Software Piracy and the Law. See generally the Intellectual Property article in this issue.
(4.) For example, though it caused no loss of data or lasting damage, an attack the Department of
Justice computers drew considerable attention when a hacker altered the DOJ (Department Of
Justice) The legal arm of the U.S. government that represents the public interest of the United
States. It is headed by the Attorney General. web site to display obscene and racist material.
Hiawatha Bray '''Hiawatha Bray''' is a technology columnist for the ''Boston Globe''. Born in Chicago,
he started as a reporter and managing editor for ''Computerpeople Weekly''. , Obscenities Posted on
Federal Web Page, Boston Globe, Aug. 18, 1996, at A 19. The Central Intelligence Agency fell victim
to a similar attack the following month. Norman Kempster, CIA CIA: see Central Intelligence
Agency.
(1.) Richard D. Marks, Security, Privacy, and Free Expression in the New World of Broadband
Networks, 32 Hous. L. Rev. 501, 501-508 (1995).
An interesting overlap exists between Fourth Amendment and First Amendment(142) issues. The
question for debate is whether electronic data constitutes speech, and whether a computer which
disseminates this data to the public can be considered a "newspaper" which enjoys the freedoms
protected by the First Amendment and the Privacy Protection Act of 1980.(143) The First
Amendment may protect some records from seizure,(144) and may also protect the internet from
content regulation.(145)
(43.) The 1994 Act adds 18 U.S.C. [sections] 1 030(g), which provides as follows:
Droit is as variable a phrase as the English right or the Latin jus. It signifies the entire body of law or
a right in terms of a duty or obligation. Penal in Wurzburg 64 Rev. Int'l de D. Penal 67 (1993)
(describing international efforts to harmonize computer crime laws).
(159.) Branscomb, supra note 158, at 32. See, e.g., Mont. Code Ann. [sections] 45-6-311 (1993 &
Supp. 1994) ("unlawful use of computer" defined as an offense against property, in the section of the
code relating to theft); Mass. Gen. Laws Ann. ch. 266, [sections] 30(2) (West 1990) (larceny statute
provides that "[t]he term `property'. . . shall include . . . electronically processed or stored data,
either tangible or intangible, [and] data while in transit"); Nev. Rev. Stat. [sections] 205.4755 (1993)
("property" includes "information, electronically produced data, program[s], and any other tangible
or intangible item of value").
the objective form of whoever: ] through means of a computer used in interstate commerce or
communications, knowingly causes the transmission of a program, information code or command to
a computer or computer system . . . .") with the 1986 Act ([sections] 1030(a)(5) read "[whoever]
intentionally accesses a Federal interest computer without authorization . . . .").
Michael Bruce Sterling (born April 14, 1954) is an American science fiction author, best known for
his novels and his seminal work on the Mirrorshades anthology , The Hacker Crackdown: Law and
Disorder on the Electronic Frontier (1992).
(29.) 18 U.S.C. [sections] 1030(a)(2) (1994). A "financial record" is defined as "information derived
from any record held by a financial institution pertaining to a customer's relationship with the
financial institution." 18 U.S.C. [sections] 1030(e)(5) (1994).
(12.) A computer "virus" is a program which replicates itself and spreads through a computer system
or network. Viruses may be benign or destructive; some cause unexpected screen displays, delete
computer files, create false information, or cripple a computer's ability to process information.
Camille Cardoni Marion, Computer Viruses and the Law, 93 Dick. L. Rev. 625, 627 (1989). See also
Susan M. Mello, Comment, Administering the Antidote to Computer Viruses: A Comment on United
States v. Morris, 19 Rutgers Computer & Tech. L.J. 259, 259 n.4 (1993) (describing and defining
computer viruses)
communications facility directly related to or operating in conjunction
or files, and the stealing of financial instruments, data, and other
America's Most Wanted, a U.S.
Burglary--Requires a physical intrusion into a building, which is not necessary when computers may
be accessed remotely.
plagiarisation, plagiarization, piracy, plagiarism - the act of plagiarizing; taking someone's words or
ideas as if they were your own .(64) The criminal copyright infringement statute has three elements:
(1) infringement of a copyright; (2) done willfully willfully adv. referring to doing something
intentionally, purposefully and stubbornly. Examples: "He drove the car willfully into the crowd on
the sidewalk." "She willfully left the dangerous substances on the property." (See: willful) ; and (3)
for commercial advantage or private financial gain.(65) The first element of copyright infringement
may be satisfied by the mere unauthorized copying of computer software'(66) but the second and
third elements are often more difficult to prove.(67)
CCU
(149.) Ala. Code [sections] 13A-8-100 to -103 (1994); Alaska Stat. [subsections] 11.46.200(3),
11.46.740 (1989); Ariz. Rev. Stat. Ann. [sections] 13-2316 (1989 & Supp. 1994); Ark. Code Ann.
[subsections] 5-41-101 to -107 (Michie 1993); Cal. Penal Code [sections] 502 (Deering 1983 & Supp.
1995); Colo. Rev. Stat. [subsections] 18-5.5-101 to -102 (1990 & Supp. 1994), Conn. Gen. Stat.
[sections] 53a-250 to -261 (1994); Del. Code Ann. tit. 11, [sections] 931-939 (1987 & Supp. 1994);
Fla. Stat. ch. 815.01-.07 (1993 & Supp. 1994); Ga. Code Ann. [subsections] 16-9-90 to -94 (1992);
Haw haw, common name for several plants, e.g., the hawthorn and the black haw (see
honeysuckle). . Rev. Stat. [subsections] 708-890 to -893 (1985 & Supp. 1992);Idaho Code
[subsections] 18-2201 to -2202 (1987); 720 ILCS ILCS Illinois Compiled Statutes
ILCS Iraq Living Conditions Survey (UN Development Programme for Iraq)
ILCS International Liquid Crystal Society
ILCS International Logistics Communication System
ILCS Improved Low-Cost Sonobuoy 5/16D-I to -7 (formerly Ill. Rev. Stat. ch. 38, para. 16D-I to -7)
(1993); Ind. Code [subsections] 3543-14, 3543-2-3 (1993); Iowa Code [subsections] 716A.1 to .16
(1995); Kan. Stat. Ann. [subsections] 21-3755 (Supp. 1993); Ky. Rev. Stat. Ann. [subsections]
434.840 to .860 (Michie/Bobbs-Merrill 1985); La. Rev. Stat. Ann. [subsections] 14:73.1 to .5 (West
1986 & Supp. 1995); Me. Rev. Stat. Ann. tit. 17-A, [subsections] 431-433 (West Supp. 1994); Md.
Ann. Code art. 27, [sections] 146 (1993); Mass. Gen. Laws Ann. ch. 266, [sections] 30 (West 1990);
Mich. Comp. Laws Ann. [subsections] 752.791 to .797 (West 1991); Minn. Stat. [subsections] 609.87
to .893 (1994); Miss. Code Ann. [subsections] 97-45-1 to -13 (1994); Mo. Rev. Stat. [subsections]
569.093 to. 099 (1994); Mont. Code Ann. [subsections] 45-6-310 to -311 (1993 & Supp. 1994); Neb.
Rev. Stat. [subsections] 28-1343 to -1348 (1989 & Supp. 1994); Nev. Rev. Stat. [subsections]
205.473 to .491 (1993); N.H. Rev. Stat. Ann. [subsections] 638:16 to :19 (1986); N.J. Rev. Stat.
[subsections] 2C:20-23 to -34 (Supp. 1994); N.M. Stat. Ann. [subsections] 30-45-1 to -7 (Michie
1989); N.Y. Penal Law [subsections] 156.00 to .50 (McKinney 1988 & Supp. 1995); N.C. Gen. Stat.
[subsections] 14453 to -457 (1994); N.D. Cent. Code [subsections] 12.1-06.1-08 (1985 &E Supp.
1993); Ohio Rev. Code Ann. [sections] 2913.04 (Anderson 1993); Okla. Stat. tit. 21, [subsections]
1951-1958 (Supp. 1995); Or. Rev. Stat. [subsections] 164.125, 164.377 (1993); 18 Pa. Cons. Stat.
[sections] 3933 Supp. 1994); Ri. Gen. Laws [subsections] 11-52-1 to -8 (1994); S.C. Code Ann.
[subsections] 16-16-10 to 40 (Law. Co-op. 1985 & Supp. 1994); S.D. Codified Laws Ann.
[subsections] 43-43B-1 to -8 (1983 & Supp. 1995); Tenn. Code Ann. [subsections] 39-14-601 to -603
(1991 & Supp. 1994); Tex. Penal Code Ann. [subsections] 33.01 to .05 (West 1994); Utah Code Ann.
[subsections] 76-6-701 to -705 (1995 & Supp. 1995); Va. Code Ann. [subsections] 18.2-152.2 to .4
(Michie 1988 & Supp. 1995); Wash. Rev. Code [subsections] 9A.52.110 to .130 (1992 & Supp. 1994);
W. Va. Code [subsections] 61-3C-1 to -21 (1992 & Supp. 1995); Wis. Stat. [sections] 943.70 (Supp.
1994); Wyo. Stat. [subsections] 6-3-501 to -505 (1988).
(206.) Solomon, supra note 185, at 633 (citing M. Cherif Bassiouni, Effective National and
international Action Against Organized Crime and Terrorist Criminal Activities, 4 Emory Int'l L. Rev.
9, 20 (1990)).
(22.) 18 U.S.C. [sections] 1030 (1994). See also Griffith, supra note 21, at 483-84 (Computer Fraud
and Abuse Act of 1986 sought to increase deterrence of computer crimes affecting compelling
federal interests by tightening statutory language and modifying the elements of existing offenses).
(102.) Michael Alexander, Justice Revs Up Battle on Computer Crime, Computerworld, Oct. 7, 1991,
at 4.
permitted to remove them . . . so that a computer expert could attempt to
(164.) Branscomb, supra note 158, at 35. Compare N.Y. Penal Law [sections] 156.30 (McKinney
1988 & Supp. 1995) (the copied material need not be copyrightable; the offender must "deprive[] or
appropriat[e] from an owner . . . en economic value or benefit in excess of [$2000]") with N.J. Rev.
Stat. [sections] 2C:20-33 (1995) (copying or altering a computer program or computer software is
not theft if it is of a retail value of $1000 or less and is not copied for resale).
(19.) Pub.L. No.98-473, 98 Stat. 2190 (1984) [hereinafter the 1984 Act] (codified codify
tr.v. codified, codifying, codifies
1. To reduce to a code: codify laws.
Adv. 1. Criminal Justice Resource Manual]. Another broad definition of computer crimes includes
any illegal act involving a computer that may be prosecuted under criminal laws. Catherine Conly,
Organizing for Computer Crime Investigation and Prosecution 6 (1989). For a more detailed
breakdown of the types of computer crimes, see generally David Icove et al., Computer Crime: A
Crimefighters Handbook (1995).
2. To subject to an excessive burden or strain; overtax.
(202.) The Netherlands Passes Anti-hacking Law, Computer Fraud and Sec. Bull., Sept. 1992.
(130.) 18 U.S.C. [sections] 2701(b)(1)(B) (1994).
7. Prevention of authorized use. This approach, taken by approximately one-fourth of the states,
outlaws any activity which impairs the ability of authorized users to obtain the full utility of their
computer systems. Unauthorized execution of programs which slow down the computer's ability to
process information falls under such statutes.(165)
is finding it increasingly difficult to prevent political dissidents from spreading information inside
of China as well as prevent their importation of information from abroad via the Internet. See,
Steven Mufson, Chinese Protest Finds a Path on the Internet: Beijing Tightens Its Control; Can't
Prevent On-Line Access, Wash. Post, Sept. 17, 1996, at A9.
use, used by or for a financial institution or the United States Government
Embezzlement--Of limited use in computer context, because offense requires that the perpetrator A
term commonly used by law enforcement officers to designate a person who actually commits a
crime. initially has lawful possession or access to the system.
(27.) 18 U.S.C. [sections] 1030(a)(1)-(6) (1994).
As with other computer-related crimes, encryption technology has also hindered detection of child
pornography consumers. In 1994, a child molester Noun 1. child molester - a man who has sex
(usually sodomy) with a boy as the passive partner
paederast, pederast
2. critical care unit
with such device, but such term does not include an automated typewriter or
(155.) See generally, Barton supra note 152, at 481-82. suggesting that in their current form several
of the 432 statutes could be unconstitutional on First Amendment grounds, as some state courts
have found they infringe on protected speech or are overly broad).
(195.) For example, the Chinese government Ever since Republic of China founded in January 1st,
1912, China has had several regional and national governments. List
(211.) See e.g., Firewalls Provide Effective Internet Security ''This article or section is being
rewritten at
all of which are located in the same State.
However, the highly technical nature of computer crimes and the evidentiary
evidentiary
adj. Law
1. Of evidence; evidential.
A. Federal Criminal Code
2 In U.S. history, see states' rights.
2. Acting with or marked by stealth. See Synonyms at secret. accessed through the global
telecommunications network A telecommunications network is a of telecommunications links and
nodes arranged so that messages may be passed from one part of the network to another over
multiple links and through various nodes. from anywhere in the world.(186) International financial
institutions are common targets for computer fraud and embezzlement schemes.(187) The
development of sophisticated computer technology has also enabled organized crime groups to
bypass government detection and enter into the international realm of drug trafficking and money
laundering The process of taking the proceeds of criminal activity and making them appear legal.
John Johnson (composer) (c. 1550-1594), English lutenist & composer
(20.) For an analysis of problems with enforcing computer-crime laws and an argument for
alternatives to ex post criminalization of computer crimes, see generally Michael P. Dierks,
Computer Network Abuse, 6 Harv. J.L. & Tech. 307 (1993) (suggesting that the "invisible hand
Invisible Hand
critical care unit.
In September 1995, the Justice Department revealed that the 12 arrests it made in the spring, along
with the 125 searches of suspects' homes nationwide, were the result of operation "Innocent
Images," a two-year FBI investigation of America Online See AOL. , the nation's largest commercial
computer network. The FBI found that America Online was being used to distribute child
pornography and lure minors into sex acts. Jon Jeter, FBI Agents Posed as Teenagers in On-Line
Child Porn Inquiry, Wash. Post, Sept. 15, 1995, at A3.
Montgomery County, Kansas
In the investing world, a totally new way of doing things that has a huge effect on business.
(E) any institution of the Farm Credit System under the Farm Credit Act of 1971;
(2.) National Institute of Justice, U.S. Dep't of Justice, Computer Crime: Criminal Justice Resource
Manual 2 (1989) [hereinafter hereinafter
adv.
In a following part of this document, statement, or book.
b. National Stolen Property Act
d. Electronic Communications Privacy Act
D. Ancillary Issues
In addition, approaches to prosecuting computer hackers still differ. See generally Comment,
Computer Hacking: A Global Offense, 3 Pace Y.B. Int'l L. 199 (1991) (comparing legislation
governing hackers and prosecutions thereunder in Canada, the United States, and the United
Kingdom).
(121.) U.S.S.G. [sections] 2B1.1(b)(5)(A).
Artists and entertainers
(117.) 18 U.S.C. [sections] 2314 (1994). See United States v. Pierro, 32 F.3d 611, 620 (1st Cir. 1994)
(affirming lower court's ruling that a downward departure from the sentencing guidelines was
unwarranted because defendant's theft and interstate resale of stolen computer components fell
clearly within [sections] 2314 and guideline provisions).
Violators of [subsections] 1030(a) and (b) are sentenced under the Federal Sentencing Guidelines
The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for convicted
defendants in the United States federal court system. The Guidelines are the product of the United
States Sentencing Commission and are part of an overall federal sentencing reform .(106) These
guidelines determine the base offense level for violations of [subsections] 1030(a)(1),(107)
1030(a)(2)-(6),(108) and 1030(b).(109) While courts are allowed to depart from the Guidelines under
certain circumstances when sentencing a defendant for a violation of the Act, they rarely do so.(110)
(133.) The Fourth Amendment states that "no Warrants shall issue, but upon probable cause
Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and
prudent person to believe that an accused person has committed a crime, thereby warranting his or
her prosecution, or that a Cause of Action has accrued, justifying a civil lawsuit. , supported by Oath
or affirmation, and particularly describing the place to be searched, and the persons or things to be
seized." U.S. Const. amend. IV.
(171.) 1 F.3d 225 (4th Cir. 1993).
International organizations and private corporations are each working to combat computer crimes.
International organizations have contributed to the drive to harmonize national legislation.(207) The
Business Software Alliance,(208) a software industry trade group, has launched an international
copyright enforcement program involving national software trade associations and law enforcement
agencies A law enforcement agency (LEA) is a term used to describe any agency which enforces the
law. This may be a local or state police, federal agencies such as the Federal Bureau of Investigation
(FBI) or the Drug Enforcement Administration (DEA). which have begun by focusing on
distribution of counterfeit software.(209) According to that group, international software piracy The
illegal copying of software for distribution within the organization, or to friends, clubs and other
groups, or for duplication and resale. The software industry loses billions of dollars each year to
piracy, and although it may seem innocent enough to install an application on a costs United
States software makers $12 billion dollars annually.(210)
(184.) See Richard Raysman and Peter Brown, Interpretation of New York's Tampering Statute, N.Y.
L.J., Apr. 12, 1994, at 6.
6. Unauthorized copying. This unusual approach appears to be a close cousin of federal criminal
copyright infringement. Few states have defined copying programs and data as a distinct state
offense.(164)
2. the normal operation of the computer"); Conn. Gen. Stat. [sections] 53a-251(e) (1994) (unlawful
to make or cause to be made an unauthorized display, use, disclosure or copy of data, or add data to
data residing within a computer system); Del. Code Ann. tit. 11, [sections] 935 (1987 & Supp. 1994)
(proscribing "interrupt[ion] or add[ition of] data to data residing within a computer system"); Minn.
Stat. [sections] 609.87 (1994) (criminalizing "[d]estructive computer program" that "degrades
performance," "disables," or "destroys or alters" data); W. Va. Code [sections] 61-3C-8 (1992 &
Supp. 1995) (prohibiting "disruption or degradation of computer services").
While the volume of computer-crime prosecution is low, federal authorities are taking steps to raise
the profile of computer-crime prosecution.(97) Enforcement against well-known hackers appears to
be on the rise.(98) In addition, federal prosecutors are securing controversial indictments for
computer crimes under a broad reading of wire fraud and criminal copyright infringement
statutes.(99) Finally, the proliferation of computer bulletin boards and other on-line services has led
to prosecution of illegal distribution of computerized pornographic materials(100) and of computer-
related sexual assault on minors.(101)
(150.) Roache, supra note 146, at 392. Computer security is enhanced because potential victims of
computer crimes are more aware of specific possible violations, potential violators are more likely to
know which particular activities are unlawful, and prosecution is aided by eliminating the need for
prosecutors, attorneys, and judges to rationalize the application of a traditional criminal law in a
technical, computer-related context.
The Electronic Communications Privacy Act of 1986 (ECPA Pub. L. 99-508, Oct. 21, 1986, 100 Stat.

(165.) Branscomb, supra note 158, at 35. See Wyo. Stat. [sections] 6-3-504 (1988) ("crime against
computer users" occurs if offender "[d]enies computer system services to an authorized user"); La.
Rev. Stat. Ann. [sections] 14:73.4 (West 1986) (an offense against computer users takes place when
an authorized user is intentionally denied "the full and effective use of or access to a computer, a
computer system, a computer network, or computer services.")
brought under this subsection unless such action is begun within 2 years
2. To treat as a criminal. of copyright infringement is also gaining momentum around the
world.(193) In general, countries have taken three approaches in criminalizing computer offenses.
First, the "evolutionary" approach simply incorporates computer offenses into existing statutes.
Second, "computer-specific offenses" may be defined in terms of existing crimes. Third, "computer-
specific statutes" define entirely new crimes.(194)
b. Defenses
(129.) 18 U.S.C. [sections] 2701(b)(1)(A) (1994).
(205.) Computer-Related Crime, supra note 186, at 503-04 (cooperative international solutions could
begin on a regional level, such as within the European Community). While the EC's 1991 Software
Directive is aimed at harmonizing European copyright laws rather than computer security per se, it
does mandate that member States adopt prescribed penalties for software piracy and procedures for
seizing illegally-copied software, a first step towards addressing broader issues raised by computer
crimes. Council Directive 91/250/EEC, 1991 O.J. (L122) 42, 42-46.
(68.) 18 U.S.C. [sections] 2314 (1994). See generally Intellectual Property Crimes article in this
issue.
One commentator has discerned the following ten areas addressed by state computer crime
statutes.(158)
Ass'n of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804, 810 (D. Md. 1995) (holding
that while Realtors' association's computerized database is entitled to copyright protection because
it contained their marketing "puffery puffery
n.
Flattering, often exaggerated praise and publicity, especially when used for promotional purposes.
2. Other Statutes
(H) a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of
section 1(b) of the International Banking Act of 1978); and
Arab Countries are also struggling with the growth of the Internet. Habib Al-Rida, Assistant Under-
Secretary of the UAE Ministry of Information noted, "The challenge facing us now is how to protect
our society against the potentially harmful influences coming through the system, whether criminal
or otherwise, while at the same time, making it possible for our companies and individuals to benefit
from the valuable access to the worldwide pool of skills and information that the Internet
represents." See, Ahmad Mardini, Gulf-Culture: Officials Worry About Smut on Internet, Inter Press
Service Inter Press Service (abbreviated: IPS) is a global news agency. Its main focus is the
production of independent news and analysis about events and processes affecting economic, social
and political development. , Jan. 19, 1996, available in 1996 WL7881040.
Another well-known hacker who was arrested and convicted of computer crimes in 1988, "Condor,"
is the subject of an FBI investigation for unauthorized entry into Pacific Bell Telephone Co.
computers. John Johnson John Johnson may refer to:
(F) a broker-dealer registered with the Securities and Exchange Commission pursuant to section 15
of the Securities Exchange Act of 1934;
(116.) U.S.S.G. [sections] 2B5.3(b)(1).
(C) a credit union with accounts insured by the National Credit Union Administration;
CCU Critical care unit, see there ") within the Criminal Division. The CCU was given the
responsibility for prosecuting computer crimes, lobbying for strengthened penalties, and pushing for
expanded coverage of the federal computer crime statues.(102) However, there have been few
judicial opinions under the 1986 Act since the new Computer Crime Unit was established.(103)
(108.) 18 U.S.C. [sections] 1030(a)(2)-(6) (1994). The base offense level for a violation of [sections]
1030(a)(2)-(6) is dependent on the value of the loss suffered. U.S.S.G. [sections] 2F1.1. For a
complete explanation of the application of [sections] 2F1.1, see the Mail and Wire Fraud article in
this issue. See, e.g., United States v. Sykes, 4 F.3d 697, 698 (8th Cir. 1993) (per curiam) (upheld
sentence of 27 months for conviction for stolen checks and computer fraud violation of [subsections]
1030(a)(4)(b) and (c)(3)(a) involving an automatic teller machine); United States v. Lewis, 883 F.2d
76 (6th Cir. 1989) (sentence of two years imprisonment imposed for a violation of [sections]
1030(a)(4)).
(233.) 937 F. Supp. 161 (D. Conn. 1996).
problem for business and government; that losses for each incident of
(196.) See, Andy Riga, Governments Grappling With Net Curbs, Montreal Gazette, Mar. 16, 1996, at
B2, available in 1996 WL4175432.
A very speculative grade assigned to a debt obligation by a rating agency. Such a rating indicates
default or considerable doubt that interest will be paid or principal repaid. Also called Caa.
B. Conflict Between State and Federal Laws
A raid also occurred in June 1995, where authorities targeted not only purveyors of pornography,
but also more than 100 individuals for allegedly downloading pornographic images of children
through America Online. Steven Levy, No Place for Kids? A Parent's Guide to Sex on the Net,
Newsweek, July 3, 1995, at 47. See also United States v. Maxwell, 42 M.J. 568, 580 (A.F. Ct. Crim.
App. 1995) (defendant convicted of using personal computer to transport pornographic materials).
a. Copyright Act
Law enforcement officers also faced problems in Steve Jackson Games, Inc. v United States Secret
Service, 816 F.Supp. 432 (W.D. Tex. 1993), aff'd, 36 F.3d 457 (5th Cir. 1994). The district court
found that the officers' zeal exceeded their statutory authority when they seized documents and
information from the company. The officers also failed to promptly return information protected by
the Stored Wired and Electronic Communications and Transactional Records Access Act, 18 U.S.C.
[subsections] 2701-11. Id. at 443 n.7. The company successfully sued the Secret Service, recovering
expenses and economic damages. Id. at 438.
Actaeon
(62.) For additional perspectives on prosecution under other statutes, see generally Trespassers Will
Be Prosecuted, supra note 19 (discussing application of federal statutes other than the 1986 Act to
computer crimes).
8. Unlawful insertion or contamination. These statutes criminalize the highly publicized "viruses,"
"worms," and "logic bombs" which may be planted on computers or transmitted over telephone lines
or on floppy disks. Unlawful insertion provisions do not require actual "access" of a computer by the
offender because the offending programs may be communicated indirectly over networks or on
floppy disks by offenders who never use the affected computer.(166)
, and the National Writers Union, among others. Id at 827. Shea v. Reno was filed by the publisher of
an on-line newspaper. Id at 922.
(127.) 18 U.S.C. [sections] 2511 (4)(a) (1994). Under the Guidelines, defendants convicted of
intercepting communications or eavesdropping Secretly gaining unauthorized access to confidential
communications. Examples include listening to radio transmissions or using laser interferometers to
reconstitute conversations by reflecting laser beams off windows that are vibrating in synchrony to
the sound in the room. receive abase offense level of nine. U.S.S.G. [sections] 2H3.1(a). If the
purpose of the conduct was to obtain direct or indirect commercial advantage or economic gain, the
offense level is increased by three levels. U.S.S.G. [sections] 2H3.1(b)(1). Additionally, if the purpose
of the conduct was to facilitate another offense, the guideline applicable to an attempt to commit
that offense should be applied if the resulting offense level would be greater. U.S.S.G. [sections]
2H3.1(c)(1).
excretory
1. Computer Fraud and Abuse Act The Computer Fraud and Abuse Act is a law passed by the United
States Congress in 1986 intended to reduce "hacking" of computer systems. It was amended in
1994, 1996 and in 2001 by the USA PATRIOT Act.
2. In keeping with: according to instructions.
Foreign policy, a set of political goals that seeks to outline how a particular country will interact
with other countries of the
(23.) 18 U.S.C. [sections] 1030 (1994) [hereinafter the " 1994 Act"].
(55.) Id at 869-870.
b. Defenses
conduct], may maintain a civil action against the violator to obtain
Ultimately, the global interconnection of vulnerable computer systems may require a uniform legal
framework for dealing with multinational computer-related crimes. One possible solution, according
to a commentator, is to adopt an international convention standardizing domestic statutes and
facilitating cooperative enforcement efforts.(205) In order to achieve an effective reduction in
international computer-related crimes, several essential goals have also been recommended: (1)
consistent extradition of criminals; (2) cooperation in the retention of witnesses and evidence; (3)
recognition and enforcement of criminal judgments issued by a nation's court; and (4) a combined
effort between each nation's law enforcement and prosecutorial organizations.(206)
(226.) 74 F.3d 701 (6th Cir. 1996).
290001(d), 108 Stat. at 2098. There is no civil remedy CIVIL REMEDY, practice. This term is used in
opposition to the remedy given by indictment in a criminal case, and signifies the remedy which the
law gives to the party against the offender.
2. for reckless conduct which causes loss. However, if the amendment is to be read that
no civil action may be maintained against a violator of subsection (a)(5)(B), it is unclear why
damages for violations of subsection (a)(5)(B)(ii)(II)(bb) may include more than economic damages.
A. Defining Computer Crime
Two civil cases, however, highlight the difficulties that courts face in applying traditional legal tests
Legal tests are various kinds of commonly-applied methods of evaluation used to resolve matters of
jurisprudence.[1] In the context of a trial, a hearing, discovery, or other kinds of legal proceedings,
the resolution of certain questions of fact or law may hinge on the to Internet-related cases. In
Bensusan v. King,(232) a New York court dismissed for lack of jurisdiction a trademark infringement
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the
authorization of the trademark owner or any licensees (provided that such authorization was within
the scope of the license). suit brought by a New York nightclub owner against the owner of a
Missouri club of the same name. The court held that advertising the Missouri club on the Internet's
World Wide Web did not constitute sufficient minimum contacts to subject the Missouri owner to
New York jurisdiction.
(86.) See United States v. Crawford, 52 F.3d 1303, 1309-1310 (5th Cir. 1995) (determining that the
manufacture or sale of devices for unauthorized interception of cable television signals violates
ECPA); see also United States v. Chick, 61 F.3d 682, 687-688 (9th Cir. 1995) (selling illegaly
modified satellite descramblers can be prosecuted under ECPA [sections] 2512); United States v.
One Macom Video Cipher 11, 985 F.2d 258, 261 (6th Cir. 1993) (holding that neither [sections] 2111
nor [sections] 2512 of the ECPA nor 47 U.S.C. [sections] 605 exclude modification of satellite
descramblers from coverage); United States v. Harrell, 983 F.2d 36,37-38 (5th Cir. 1993) (stating
that ECPA applies to modified satellite descramblers); United States v. Davis, 978 F.2d 415, 417-418
(8th Cir. 1992) (overruling United States v. Hux, 940 F.2d 314 (8th Cir. 1991), with respect to its
holding that manufacture of satellite descrambler descrambler
n.
An electronic device that decodes a scrambled transmission into a signal that is intelligible to the
receiving apparatus.
(17.) Many traditional crimes, when committed using a computer, have been specially defined in
computer-specific federal and state statutes. See infra [Latin, Below, under, beneath, underneath.] A
term employed in legal writing to indicate that the matter designated will appear beneath or in the
pages following the reference.
(48.) Id.
Finally, [sections] 1030(a)(6) prohibits: "knowingly," and with intent to defraud, trafficking in
passwords which either would permit unauthorized access to a government computer, or affect
interstate or foreign commerce.(40)
(138.) Sissler, 1991 U.S. Dist. LEXIS 16465, at *11-12 ("The police were not obligated to give
deference to the descriptive labels placed on the discs. Otherwise, records of illicit activity could be
shielded from seizure by simply placing an innocuous label on the computer disk containing them.").
See also Baughman v. State, 38 Cal. App. 4th 182 (1995) (officers were immune from the loss
defendant suffered and were within the scope of their duty when they inadvertently destroyed data
on defendant's floppy disks while conducting a search authorized by a warrant that described a
variety of media and computer components but was not specific as to the defendant's name or to the
disks containing the destroyed data).
for allegedly raiding corporate computer systems and stealing 20,000 credit card numbers over a
two-year period. Although he was initially charged with 23 counts of computer fraud, all but one
were dropped. He pled guilty to illegally possessing 15 telephone numbers to access computer
systems and agreed to serve eight months in jail. Computer Hacker Agrees to Plea Bargain plea
bargain n. in criminal procedure, a negotiation between the defendant and his attorney on one side
and the prosecutor on the other, in which the defendant agrees to plead "guilty" or "no contest" to
some crimes, in return for reduction of the severity of the , WASH. POST, July 2, 1995, at A7; Bruce
Haring, Computer Hacker's Biggest Backer, USA Today, Sept. 14, 1995, at D8.
The 1994 Act attempted to strengthen and clarify the 1984 Act. Friedman, supra note 24, at 548
n.107. See United States v. Morris, 928 F.2d 504, 507-510 (2d Cir. 1991) (outlining changes made in
1986 amendments and analyzing legislative history to determine appropriate interpretation of those
changes).
(88.) 110 Stat.56, Pub. L. 104-104, February 8, 1996.
(B) the Federal Reserve or a member of the Federal reserve including any Federal Reserve Bank;
(33.) See United States v. Morris, 928 F.2d 504, 506 (2d Cir. 1991) (determining that "intentionally"
modifies "access[ing] a federal interest computer" and not preventing others from using it, and thus
causing a loss); United States v. Sablan, 92 F.3d 865 (9th Cir. 1996) (ruling that the government is
not required to prove intentional damage but only intentional access to a computer without
authorization).
a. Copyright Act
Under the amended statute' intentional computer crimes committed on interstate computers are
felonies,(41) while reckless acts on interstate computers are misdemeanors.(42) The 1994 Act also
provides an incentive for victims to report computer-related crimes by allowing civil remedies for
victims of intentional computer crimes.(43) Additionally, the 1994 Act amends subsection (a)(3) to
insert "adversely" before "affects the use of the Government's operation of such computer,"(44)
implying that a trespasser might affect the computer benignly and escape prosecution.
(148.) Fla. Stat. ch. 815.01-.07 (1993 & Supp. 1994).
Larceny--When programs or data are copied, but not deleted, from a computer, it is unclear whether
property was wrongfully "taken."
turned into stag for watching Artemis bathe. [Gk. Myth.: Leach, 8]
United States Senate Committee on the Judiciary
2. Excellent. , 898 F.2d 1356, 1358 (Or. Ct. App. 1995) (affirming the conviction for computer theft
by receiving under Or. Rev. Stat. [subsections] 164.055, 164.095 (1993) but reversing the order for
restitution because the destruction of data from the hard drive while the defendant was in
possession of the computer did not result in pecuniary damages); Pennsylvania v. Gerulis, 616 A.2d
686, 693 (Pa. Super. Ct. 1992) (interpreting the definition of "computer" under 18 Pa. Cons. Stat.
Ann. [sections] 3933 (Supp. 1994) to encompass voice mailbox systems in upholding the conviction
of defendant for secretly using the voice mailbox system of a major hospital to,store stolen telephone
credit card numbers); Washington v. Riley, 846 F.2d 1365, 1373 (Wash. 1993) (finding a telephone
company's long-distance switch was a "computer" in upholding the conviction for computer trespass
of a hacker who attempted to illegally steal individual long-distance access codes).
a. Offenses Under the Statute
A. Overview of State Criminal Codes
Noun 1. false pretense or to convert the property of another).
(225.) ACLU, 929 F. Supp 824.
(15.) Criminal Justice Resource Manual, supra note 2, at 2.
(a)(5)(A)(ii)(II)(bb) [intentional modification or impairment of medical
infra prep.
records] or (a)(5)(B)(ii)(II)(bb) [reckless modification or impairment
(61.) United States Sentencing Commission The United States Sentencing Commission is an
independent agency of the Judicial Branch of the United States Government and is responsible for
the policy of the sentencing United States Federal Courts. , Computer Fraud Working Group, Report
Summary: Summary of Findings at 3 (1993) (hereinafter "Report Summary) (suggesting that while
the prosecution of computer fraud and abuse continues under traditional statutes that are
sufficiently generic to apply to many computer-related offenses, there are some offenses that are
unique to computers and, therefore, require prosecution under an act specific to computer operation
and related activity).
Acquisition of trade secrets from business competitors. Industrial spying is a reaction to the efforts
of many businesses to keep secret their designs, formulas, manufacturing processes, research, and
future plans.
(156.) Neb. Rev. Stat. [sections] 28-1343(5) (1989 & Supp. 1994) (a "computer security system" is "a
computer program or device that . . . [i]s intended to protect the confidentiality and secrecy of data
and information stored in or accessible through the computer system and [d]isplays a conspicuous
warning to a user that the user is entering a secure system or requires a person seeking access to
knowingly respond by use of an authorized code to the program or device in order to gain access").
," it is question of fact to determine if defendant's downloading of database qualifies as unauthorized
copying); see also Feist feist also fice
n. Chiefly Southern U.S.
A small mongrel dog.
In late 1991, the Department of Justice established the Computer Crime Unit ("CCU CCU
abbr.
1. coronary care unit
The rapid emergence of computer technologies has spawned a variety of new criminal behaviors and
an explosion in specialized legislation to combat them.(1) While computer crimes include traditional
crimes committed with a computer, the term also encompasses offenses against intellectual property
and other crimes that do not fall within traditional criminal statutes. The diversity of computer-
related offenses thus demands a broad definition. The Department of Justice defines computer
crimes as "any violations of criminal law that involve[s] a knowledge of computer technology for
their perpetration perpetrate
tr.v. perpetrated, perpetrating, perpetrates
To be responsible for; commit: perpetrate a crime; perpetrate a practical joke. , investigation, or
prosecution."(2)
1. Searches of Computer Records
(199.) For example, some European laws focus more on data protection for privacy reasons than in
the United States. See Comment, The Right to Financial Privacy Versus Computerized Law
Enforcement: A New Fight in an OW Battle, 86 Nw. U. L. Rev. 1169, 1169-72, 1215-19 (1992)
(comparing creation and purpose of U.S. Treasury Department's Financial Crimes Enforcement
Network Noun 1. Financial Crimes Enforcement Network - a law enforcement agency of the
Treasury Department responsible for establishing and implementing policies to detect money
laundering
FinCEN with independent privacy protection agencies in Sweden, Germany and France).
(192.) For reports on computer-crime legislation and prosecution in a number of countries, see
Colloquium, Computer Crime and Other Crimes Against Information Technology, 64 Rev. Int'l de
Droit Penal 1 (1993) (reporting on Austria, Belgium, Brazil, Canada, Chile, China, Czechoslovakia,
Egypt, Finland, France, Germany, Greece, Hungary, Israel, Italy, Japan, Luxembourg, the
Netherlands, Poland, Portugal, Romania, South Africa South Africa, Afrikaans Suid-Afrika, officially
Republic of South Africa, republic (2005 est. pop. 44,344,000), 471,442 sq mi (1,221,037 sq km), S
Africa. , Spain, Sweden, Switzerland, Tunisia, Turkey, the United Kingdom, and the United States).
See also Stefano Agostini, Focus on Italy: Overview of Intellectual Property Legislation, 7 No. 1 J.
Proprietary Rts. 8 (1995) (describing recent modifications of the Italian Criminal Code's computer
crime rules and criminalization of software copyright violations).
(189.) An example of potential terrorist activities via the computer occurred in Los Angeles Los
Angeles (ls ?n`j?l?s, l?s, ?n`j?l?z'), city (1990 pop. 3,485,398), seat of Los Angeles co., S Calif.;
inc. 1850. , where a group of hackers broke in to a Los Angeles Hospital computer and doubled all
the dosages of medicine for patients in the intensive care ward. See, Matthew R. Burnstein, Conflicts
on the Net: Choice of Law in Transnational Cyberspace, 29 Vand. J. Transnat'l L. 75, 85 (1996).
Estimates of the predominant sources and extent of computer crimes vary. Many experts value
losses due to computer crimes in the hundreds of millions and even in the billions of dollars.(3)
While the exploits of youthful computer hackers have received the most press coverage,(4) experts
maintain that insider crimes committed by disgruntled disgruntle
tr.v. disgruntled, disgruntling, disgruntles
To make discontented.
2. Subtle but base deception; trickery.
Telecommunications Act of 1996 in the United States
John Montgomery (Maryland politician) (1764-1828), U.S.
(119.) U.S.S.G. [sections] 2B1.1.
& Julie Tamaki, Authorities Again Seek Legendary Hacker, L.A. Times, July 10, 1994, at B1.
John A. "Moose" Farrell (July 5, 1857 - February 10, 1914) was a 19th century major league baseball
player who played mainly second base in his 11 seasons. Implement Co., 763 F.Supp. 1473, 1500
(D. Minn. 1991) (where access to information authorized, ECPA claim failed).
(190.) Thus far, unlawful computer system intrusions have fallen short of disastrous terrorist
attacks. However, the potential danger is evident. In one example, a Lithuanian nuclear power plant
operator unsuccessfully introduced a virus into the plant's computers, intending to disrupt the
nuclear reactor. Nikolai Lashkevich, Malefactor MALEFACTOR. He who bas been guilty of some
crime; in another sense, one who has been convicted of having committed a crime. at Ignalina
Nuclear PlantMalefactor at Ignalina Nuclear Plant, Izvestiia, Feb.3, 1992, at 8.
damages under Or. Rev. Stat. [sections] 137.103(2) (1993)); Schalk v. State, 767 S.W.2d 441, 448
(Text Ct. App. 1988) (defining computer programs as a trade secret).
2. Other Statutes
The increasingly global nature of computer networks also continues to raise complex questions of
venue, jurisdiction, and choice of laws. In U.S. v. Thomas,(226) the Sixth Circuit affirmed the
conviction in Tennessee district court of the operators of a California adult bulletin board system
(BBS (1) (Bulletin Board System) A computer system used as an information source and forum for a
particular interest group. They were widely used in the U.S. ) whose content was held to violate
Tennessee obscenity standards.(227) The court held that venue was proper in Tennessee(228) and
that the Thomases could be held to that state's community standards Community standards are local
norms bounding acceptable conduct. Sometimes these standards can itemized in a list that states
the community's values and sets guidelines for participation in the community. (229) given that they
knowingly solicited and accepted business from Tennessee consumers.
(201.) See generally Clifford Miller, Electronic Evidence-Can You Prove the Transaction Took Place?
9, No. 5 Computer Law 21 (1992) (analyzing problems of getting evidence of computer crimes
admitted under the rules of evidence in the United Kingdom as representative of the challenge to
prosecutors in the United States, Belgium, Germany and France); English Law The system of law
that has developed in England from approximately 1066 to the present.
(163.) Branscomb, supra note 158, at 34. See, e.g., Ohio Rev. Code Ann. [sections] 2913.04
(Anderson 1993) ("[n]o person shall knowingly gain access to any computer . . . without the consent
of, or beyond the . . . consent of, the owner"); Neb. Rev. Stat. [sections] 28-1347 (1989) (unlawful to
"knowingly and intentionally exceed[] the limits of. . . authorization"); Me. Rev. Stat. Ann. tit. 17-A,
[sections] 432 (West Supp. 1995) (a person who "intentionally accesses any computer resource
knowing that the person is not authorized to do so" is guilty of criminal invasion of computer
privacy); Iowa Code [sections] 716A.2 (1993) (proscribing unauthorized access).
Congress has treated computer-related crimes as distinct federal offenses since 1984 after passage
of the Counterfeit Access Device and Computer Fraud and Abuse Law.(19) Since they passed the
1984 Act, the volume of such legislation has expanded greatly to address the many types of
computer-related crimes. However, massive inter-networking within a decentralized computer
industry make regulation extremely difficult.(20) Regulation began as a piecemeal effort, and
initially regulators were unaware of the full scope of the problem.(21) As more data about computer
crimes has become available, the law has attempted to adapt with the Computer Abuse Amendments
Act of 1994.(22) This section examines the major federal statutes directed at computer-related
crimes and some of their practical shortcomings.
There are a variety of defenses available under [sections] 1030, including defenses relating to
jurisdiction, statutory interpretation, damages, and intent.
(89.) See American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Penn. 1996) (granting a
preliminary injunction A temporary order made by a court at the request of one party that prevents
the other party from pursuing a particular course of conduct until the conclusion of a trial on the
merits.
(D) a member of the Federal home loan bank system Noun 1. Federal Home Loan Bank System - the
central credit system for thrift institutions
financial institution, financial organisation, financial organization - an institution (public or private)
that collects funds (from the public or other institutions) and and any home loan bank;
(26.) A "computer" is defined as:
C. Sentencing
(214.) Elizabeth Corcoran, U.S. to Ease Encryption Restrictions; Privacy Advocates Wary of Proposal
for Software Exports, Wash. Post, Oct. 1, 1996, at A1.
Another available defense under both the 1986 Act and the 1994 Act is that a defendant lacked the
requisite intent. The intent defense to charges under the 1986 Act has been narrowed by limiting the
issue to the intent to access the computer.(57) In Morris, the Second Circuit rejected the contention
that the adverb adverb: see part of speech; adjective. "intentionally" in the 1986 Act requires
both intentional access and intentional harm; all that is required is intentional access.(58) The
Sablan(59) court not only adopted the rule announced in Morris, but also upheld the
constitutionality of the computer fraud statute's mens rea As an element of criminal responsibility, a
guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.
(41.) 18 U.S.C. [sections] 1030(c)(3)(A) (1994).
2. To treat as a criminal. acts which "alter, damage, delete or destroy computer programs or
files."(160)
(38.) 18 U.S.C. [sections] 1030(a)(5)(B)(i) (1994). This provision extends liability to whoever, through
an interstate computer, knowingly transmits a code or command with reckless disregard of a
substantial and unjustifiable risk that the transmission will cause damage to or deny access to a
computer or computer system. Id.
(9.) Id. (describing how computer processor time and services are targeted for theft).
(30.) "[A]dversely" was added to the 1986 Act.
use of computers, the alteration or destruction of computerized information
(176.) See Kenneth E. North, Copyright Act Snarls Computer Crime Laws, The Nat'l L.J., Nov. 1,
1993, at S36. For example, Illinois' Computer Crime Prevention Law includes copyrighted
information in its definition of property; thus, any criminal conduct involving copyrighted "property'
could not be prosecuted under state criminal law. 720 ILCS 5/16D-2(d)(3) (1993).
Noun 1. puffery - a flattering commendation (especially when used for promotional purposes)
(151.) See, e.g., Cal. Penal Code [sections] 502.01 (Deering 1983 & Supp. 1995); 720 ILCS 5/16D-6
(1993); N.M. Stat. Ann. [sections] 30-45-7 (Michie 1989). Illinois' provision distributes half the
forfeited proceeds to the local government agency which investigated the computer fraud, for
training and enforcement purposes, and half to the county in which the prosecution was brought,
where it is placed in a special fund and appropriated to the State's Attorney for use in training and
enforcement.
Formal or law from this point on in this document, matter, or case
hereinafter
Adverb
(13.) "Logic bombs" are destructive programs which are "detonated" by the occurrence of a specific
event, such as a particular date or time See, e.g., United States v. Lauffenberger, No. 91-0594-T
(S.D. Cal. 1990) (employee planted a logic bomb in his employer's computer system)
(217.) 47 U.S.C. [sections] 223 (1934).
(66.) To prove the first element of copyright infringement, the prosecution must show (1) the
existence of a valid copyright, and (2) that the defendant copied original elements of copyrighted
work. Montgomery County Montgomery County may refer to:
3. Aiding and abetting. Some statutes prohibit use of a computer to facilitate the commission of a
crime such as embezzlement or fraud.(161)
functions, and includes any data storage facility or
(111.) 18 U.S.C. [sections] 2319 (1994).
18 U.S.C. [sections] 1030(e)(2) (1994). "Federal interest computer" is defined as:
(95.) Gene Barton, Taking a Byte out of Crime: E-Mail Harassment and the Inefficacy of Existing
Law, 70 WASH. L. REV. 465, 469 (1995).
e. Telecommunications Act There are several laws named the Telecommunications Act
(142.) The First Amendment states, in part, that "Congress shall make no law . . . abridging the
freedom of speech, or of the press ...." U.S. Const. ammend. I.
[Variant of obsolete fist, short for fisting dog, from Middle English fisting, Publications, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (determining that a mere alphabetical listing of
information in telephone directory does not possess at least a minimal degree of creativity, and,
thus, does not qualify for copyright protection); but see CCC CCC
Venue provisions are included in some states' laws regarding computer-related crimes.(179) Some
states deem a violation to occur where any act performed in furtherance of the offense occurs,
where the victim's residence or principle place of business is located, or where an unlawfully
accessed computer system is located. Since modems allow a person who commits a computer crime
to access a computer miles away, an offender could conceivably face prosecution in more than one
jurisdiction.(180)
(18.) Hollinger & Lanza-Kaduce, supra note 5, at 103-04.
Ark. Code Ann. [sections] 5-41-101 (Michie 1993).
Diplomacy, the art and practice of conducting negotiations between representatives of groups or
nations
(158.) Anne W. Branscomb, Rogue Computer Programs and Computer Rogues: Tailoring the
Punishment to Fit the Crime, 16 Rutgers Computer & Tech. L.J. 1, 32-36 (1990). For a detailed
analysis of the statutory language in state computer came codes, see Paul C. Ray, Computer Viruses
And The Criminal Law: A Diagnosis And A Prescription, 7 Ga. St. U. L. Rev. 455 (1991).
(185.) See generally Joel S. Solomon, Forming a More Secure Union: The Growing Problem of
Organized Crime in Europe as a Challenge to National Sovereignty, 13 Dick. J. Int'l L. 623, 643
(1995) (discussing the World Ministerial Conference on Organized Crime held by the United Nations
which attempted to address the hurdles sovereignty poses to effective cooperation on international
computer crimes); Ulrich Sieber, Computer Crimes and Other Crimes Against Information
Technology: Commentary and Preparatory Questions for the Colloquium colloquium
n. pl. colloquiums or colloquia
1. An informal meeting for the exchange of views.
(106.) U.S. Guidelines Manual (hereafter U.S.S.G.) App. A (Nov. 1994). See also U.S.S.G. Ch. 3
(setting forth criteria for upward and downward adjustments of offense levels).
(152.) Gene Barton, Taking a Byte Out of Crime: E-Mail Harassment and the Inefficacy of Existing
Law, 70 Wash. L. Rev. 465, 470 (1995).
(218.) 47 U.S.C. [sections] 151 (1934).
2. Having an evil or harmful influence: malevolent stars. software, such as computer viruses, if
such actions are sufficiently reckless but would not have been considered intentional under the 1986
Act.(39)
Montgomery County, Indiana
a. Copyright Act
(11.) Id. (describing how the computer is the source of asset loss).
(100.) See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996) (upholding conviction in Western
District of Tennessee under federal obscenity laws of couple who operated a computer bulletin board
from their home in California); United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995) (upholding
conviction for receipt and possession of child pornography Child pornography is the visual
representation of minors under the age of 18 engaged in sexual activity or the visual representation
of minors engaging in lewd or erotic behavior designed to arouse the viewer's sexual interest.
obtained from computer bulletin board); United States v. Chapman, 60 F.3d 894 (1st Cir. 1995)
(holding computer transmission of child pornography is not sexual exploitation of a minor for the
purpose of sentencing).
(143.) 42 U.S.C. [subsections] 2000aa to 2000aa-12 (1994). The Privacy Protection Act explicitly
includes "mechanically, magnetically or electronically recorded cards, tapes, or discs" in its
definition of "documentary materials." Id. [sections] 2000aa-7(a) (1994).
2. First Amendment Issues
lurk - lurking Around Corporate Computers, Morning News Trib. (Associated Press), Nov. 1, 1995,
at A12.
(69.) 18 U.S.C. [sections] 2314 (1994).
(28.) 18 U.S.C. [sections] 1030(a)(1) (1994).
Despite the extremely limited body of precedent, several state supreme and appellate courts have
recently handed down decisions fleshing out the computer crime statutes of their respective
states.(183) These decisions reflect the mix of political and policy concerns state judges face in
tackling the unique technical, definitional, and evidentiary problems posed by computer crimes, and
may lead courts to place greater emphasis on the net results of a defendant's actions when
determining the scope of impermissible impermissible
adj.
Not permitted; not permissible: impermissible behavior.
A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical
element. requirement. As a result, once intentional access is proven, courts will reject a defense
claiming that the effects of a program exceeded the programmer's intentions. The 1994 Act affirms
the Morris and Sablan holdings by criminalizing certain reckless conduct.(60)
(84.) 18 U.S.C. [sections] 2510(1) (1994).
(1) (Confidentiality Integrity Authentication) The three important concerns with regards to
information security. Encryption is used to provide confidentiality (privacy, secrecy). Shuts
Internet Site After Hacker Breaks In, Defaces It, Los Angeles Times Los Angeles Times
pertaining to excretion.
(52.) Since the 1986 Act required that the defendant illegally access a computer, it did not reach this
activity. Id. See Davis, supra note 39, at 438-440 (discussing application of the 1994 Act in its then-
proposed form to creators of computer viruses).
(10.) Id. (describing how a computer is the subject of a crime).
(80.) 18 U.S.C. [subsections] 2510-2521 (1994).
The Electronic Communications Privacy Act of 1986(79) (ECPA) updated the federal law pertaining
to wire and electronic communications interception(80) to prohibit unauthorized interception of
computer communications.(81) Additionally, it created a new offense of obtaining, altering, or
preventing authorized access to data stored electronically in a facility through intentional,
unauthorized access of the facility.(82) The offense created by [sections] 2701 seems to provide
additional deterrence to hacking, although there have been no successful prosecutions under the
statute.(83)
Theft of services--As above, theft of computer services may have a minimal permanent impact on the
computer system. Courts generally require a substantial showing of injury. But see Hancock v. State,
402 S.W.2d 906, 908 (Text Crim. App. 1966), (finding that commercial computer programs
constituted "property" for purposes of the state's theft statute); South Cent. Bell Tel. Co. v.
Barthelemy, 631 So.2d 1340, 1343 (La. App. 4 Cir. 1994) (refusing to define computer programs as
personal property and instead defining them as "intellectual property"). Cf. New York v. Vanguard
Meter Serv., Inc., 611 N.Y.S.2d 430, 436 (N.Y. Sup. Ct. 1994). Despite the existence of statutes
directed specifically at computer-related crime, some offenses are skill prosecuted under other
statutes. Cf. State v. Smith, 798 P.2d 1146, 1148-49 (Wash. 1990) (federal copyright law did not
preempt preempt or pre-empt
v. preempted, preempting, preempts
(169.) See supra part III.A. of this article (overview of state criminal codes).
contaminant
(47.) See 18 U.S.C.A. [sections] 1030 (a)(6)(A) (limiting the statute's reach to any computer accessed
without authorization which affects interstate or foreign commerce or any computer used by or for
the United States Government).
, and 37 percent of respondents said they would only report such crimes if required by law. M.J.
Zuckerman, Cybercrime cybercrime
also known as computer crime
for computer-related crime in business and government through the
Any use of a computer as an instrument to further illegal ends, such as committing fraud, trafficking
in child pornography and intellectual property, stealing identities, or violating privacy.
(76.) United States v. Briscoe, 65 F.3d 576 (7th Cir. 1995) (holding that fraudulent transfer of funds
through computer system violates wire fraud statute); United States v. Gaind, 31 F.3d 73, 75 (2d Cir.
1994) (finding that government contractor A government contractor is a private company that
produces goods or services under contract for the government. Often the terms of the contract
specify cost plus - i.e., the contractor gets paid for its costs, plus a specified profit margin. altered
computer clocks to "backdate backdate
tr.v. backdated, backdating, backdates
To mark or supply with a date that is earlier than the actual date: backdate a check. " reports to the
Environmental Protection Agency to falsely represent that tests had been completed within specified
period, constituting a violation of the wire fraud statute); Mid Atlantic Mid Atlantic can mean:
2. To arrange or systematize. et 18 U.S.C. [sections] 1030(1994), amended by Pub. L. No. 99-474,
100 Stat. 1213 (1986) (codified at 18 U.S.C. [sections] 1030 (1994)). For legislative history of the
1984 Act, see H.R. Rep. No. 98-894, at 9 (1984) (indicating that difficulties in prosecuting computer-
related crime arise because the property involved is intangible, making prosecution under theft and
larceny statutes difficult). See also Glenn D. Baker, Note, Trespassers Will Be Prosecuted: Computer
Crime in the 1990s, 12 Computer L.J.61, 63-66 (1993) (discussing background of the 1984Act)
[hereinafter Trespassers Will Be Prosecuted].
possibly be the subject of criminal charges based on other provisions of
American painter of primitive works, notably The Peaceable Kingdom, of which nearly 100 versions
exist. , 46 F.3d 1128 (4th Cir. 1995) (unpublished disposition) (upheld calculation of loss under the
Guidelines to apply a sentence of three years' probation, a $40,000 fine and restitution for a
copyright infringement of satellite decryption (cryptography) decryption - Any procedure used in
cryptography to convert ciphertext (encrypted data) into plaintext. systems); United States v.
Larracuente, 952 F.2d 672, 674-75 (2d Cir.1992) (affirming sentencing for criminal copyright
infringement based on retail price of films used by defendant to create "bootleg" videotapes).
(213.) Jared Sandberg Jared Lawrence Sandberg (born March 2, 1978) is an American baseball
player for the Texas Rangers. The nephew of former Chicago Cubs great Ryne Sandberg, Jared
Sandberg has been a third baseman for the Tampa Bay Devil Rays.
An employee of MCI Communications This article is about MCI before it merged with WorldCom. For
other uses, see MCI.
MCI Communications was an American telecommunications company that was instrumental in legal
and regulatory changes that led to the breakup of the AT&T monopoly of American telephony and
Corp., known as "Knight Shadow," was sentenced to three years and two months in prison for
stealing more than 50,000 telephone calling-card numbers that were eventually sold in the United
States and Europe and were used to make more than $28 million worth of phone calls, many of them
to computer bulletin boards. Hackers Sentenced in Telephone Fraud, Chi. Trib., Mar. 26, 1995, at A
12; Jeri Rowe, N.C. Man Laments Calling Card Scam on His Way to Prison, Greensboro News &
Rec., Apr. 30, 1995, at B1.
Notes issued by a federal agency whose obligations are guaranteed by the full-faith-and-credit of the
government, even though the agency's responsibilities are not necessarily those of the US
government.
b. National Stolen Property Act
v.tr.
1. To seize and hold (the power or rights of another, for example) by force and without legal
authority. See Synonyms at appropriate.
(32.) 18 U.S.C. [sections] 1030(a)(4) (1994). "[E]xceed[ing] authorized access" is defined as:
access[ing] a computer with authorization and [using] such access to obtain or alter information in
the computer that the accesser is not entitled so to obtain or alter. 18 U.S.C. [sections] 1030(e)(6)
(1994).
d. Electronic Communications Privacy Act
John Montgomery (delegate) (1722-1808), U.S. merchant, Continental Congressman for
Pennsylvania
A person may also face federal prosecution, depending on whether he or she lives in the same state
as the computer to which he or she gains unauthorized access. For example, assume that hacker A
lives in state X and hacker B lives in state Y. "If both hackers gain unauthorized access to a private,
non-financial computer system in state X and both subsequently cause identical damage, A is subject
to the laws of state X while B is subject to federal law." As a result, they may be subject to very
different penalties for identical acts. See Michael R Dierks, Electric Communications and Legal
Change: Computer Network Abuse, 6 Harv. J.L. & Tech. 307, 331-32 (1993) (arguing that although
jurisdictional boundaries always create arbitrary legal lines, these lines are particularly arbitrary in
the world of cyberspace because the sites of the act and actor may not be the same).
noted, 65 U.S.L.W. 3414 (U.S. Dec. 6, 1996) (No.96-511); Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y.
1996). Section 561(a) of the CDA provides for expedited review by a three-judge panel of any
constitutional challenges to the Act, pursuant to 28 U.S.C. [sections] 2284. Section 561(b) of the
CDA allows the panel's decisions to be appealed within 20 days directly to the U.S. Supreme Court.
(body) Electronic Frontier Foundation - (EFF) A group established to address social and legal issues
arising from the impact on society of the increasingly pervasive use of computers as a means of
communication and information distribution. , the Safer Sex Page, Planned Parenthood Planned
Parenthood
data processing data processing or information processing, operations (e.g., handling, merging,
sorting, and computing) performed upon data in accordance with strictly defined procedures, such
as recording and summarizing the financial transactions of a device performing logical, arithmetic,
or storage
(113.) 18 U.S.C. [sections] 2319(b)(1). See U.S.S.G. [sections] 2B5.3. The ten copies can represent
an infringement of one copyrighted work, or an aggregation of different works of authorship. H.R.
Rep. No. 997, 102d Cong., 2d Sess. 4 (1992), reprinted in 1992 U.S.C.C.A.N. 3569,3572.
(71.) LaMacchia, 871 F.Supp. at 536-538 (using computer bulletin board to copy copyrighted
computer software does not involve "physical taking" and, thus, cannot be prosecuted under Stolen
Property Act); see, e.g., United States v. Wang, 898 F.Supp. 758, 760 (D. Colo. 1995) (holding that a
computer program does not qualify as "goods, wares, merchandise, securities or money" for
purposes of National Stolen Property Act); United States v. Brown, 925 F.2d 1301, 1308 (10th Cir.
1991) (concluding that computer program in source code form is not tangible item and, thus, did not
constitute "goods" or "wares" under National Stolen Property Act).
C. Prosecution of Computer-Related Crimes IV. INTERNATIONAL APPROACHES V. RECENT
DEVELOPMENTS
For acts covered by the 1986 Act, a "federal interest" computer must be used and affected.(47) If an
individual installs a virus that damages a network without federal interest computers, that person's
conduct is not covered not covered Health care adjective Referring to a procedure, test or other
health service to which a policy holder or insurance beneficiary is not entitled under the terms of the
policy or payment system-eg, Medicare. Cf Covered. by the federal statute.(48)
The ECPA was intended to prevent hackers from intercepting computer communications by: (1)
expanding the protection of individuals' privacy;(84) and (2) expanding the number of crimes that
can be investigated through electronic surveillance methods.(85) In the context of modification of
satellite television descramblers, arguably analogous to computer crimes, the majority of courts
favor a broad interpretation of the ECPA.(86) Thus, the statute may also be interpreted broadly to
apply to computer-related crime. Section 2707(a) provides for civil damages for violations of
[sections] 2701, and it is possible that governmental "entities" may fall within the scope of civil
liability.(87)
(5.) Richard C. Hollinger & Lonn Lanza-Kanduce, The Process of Criminalization: The Case of
Computer Crime Laws, 26 Criminology 101, 116-17 (1988); 10 Computer Related Crime: Analysis of
Legal Pol'y 33-34 (1986); Douglas M. Reimer, Judicial and Legislative Responses to Computer
Crimes, 53 Ins. Courts. J. 406, 419 (1986). According to one source, 55 percent of all computer
losses are caused by human error. Twenty percent are caused by physical problems such as natural
disasters and power outages. Ten percent of all losses are caused by "dishonest employees," or those
who profit from their attacks, while nine percent are caused by "disgruntled employees"-
-presumably, those bent on Adj. 1. bent on - fixed in your purpose; "bent on going to the theater";
"dead set against intervening"; "out to win every event"
bent, dead set, out to merely causing harm. Viruses are said to account for four percent of losses,
while only one to three percent are deemed to be caused by outside hackers. Icove, supra A
relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM
mainframes and VAXs. It includes a query language and a program that automates the database
design process. note 2, at 22.
Punishment for violation of the Electronic Communications Privacy Act is provided for in 18 U.S.C.
[subsections] 2511 and 2701. A violation of [sections] 2511(1) can result in a fine, imprisonment for
not more than five years, or both.(127) For first-time offenders under [sections] 2511(4)(a), when the
statute is violated for purposes other than for financial gain and the illegally received
communication is not scrambled or part of a cellular telephone communication, punishment is
limited to imprisonment of not more than one year, and a fine under Title 18.(128)
(212.) The law prohibiting the exportation of encryption technology garnered extensive media
coverage due to the Zimmerman case. Zimmerman, creator of an encryption program called Pretty
Good Privacy (PGP (Pretty Good Privacy) A data encryption program from PGP Corporation, Palo
Alto, CA (www.pgp.com). Published as freeware in 1991 and widely used around the world for
encrypting e-mail messages and securing files, PGP is available for commercial use and as freeware
for ,) was being investigated for allegedly placing it on the Internet in violation of federal law. See,
Philip L. Dubois, The Zimmerman Case: Issues in Encryption Software, Colo. Lawyer, May 25, 1996.
There is general agreement among national governments and multilateral organizations that a
coordinated international effort to fight computer crimes is necessary.(185) Many computer systems
can be easily and surreptitiously surreptitious
adj.
1. Obtained, done, or made by clandestine or stealthy means.
Subsection 1030(a)(5) prohibits the intentional(33) access of a "federal interest computer" without
authorization, where such access alters, damages, or destroys information, or prevents "authorized
use" of the computer.(34) The 1994 Act includes three significant additions to [sections] 1030(a)(5),
amending the 1986 Act. First, the 1994 Act changes coverage from acts committed on federal
interest computers and affecting such computers to acts committed on computers used in interstate
commerce interstate commerce
typesetter See imagesetter. , a portable hand held calculator, or other similar device.
First, a computer may be the "object"(9) of a crime, meaning the computer itself is targeted. In this
category are theft of computer processor time and computerized services. Second, the computer
may be the "subject"(10) of a crime. In these cases, the computer is the physical site of a crime, or is
the source of or reason for unique forms of assets lost.(11) The use of "viruses'"(12) and "logic
bombs"(13) fit into this category. These crimes present novel legal problems because of the
intangible nature of the electronic information that is the object of the crime.(14) Third, a computer
may be an "instrument"(15) used to commit traditional crimes, such as theft, fraud, embezzlement
embezzlement, wrongful use, for one's own selfish ends, of the property of another when that
property has been legally entrusted to one. Such an act was not larceny at common law because
larceny was committed only when property was acquired by a "felonious taking," i. , or trespass,(16)
but in a more complex manner.(17) For example, a computer might be used to scan telephone codes
automatically to make unauthorized use of a telephone system.(18)
elders of Babylon
Montgomery County, Illinois
to the public is not punishable under this section. 18 U.S.C. [sections] 2511 (4)(c).
Lists used by law enforcement agencies to alert the public, such as the FBI Ten Most Wanted
Fugitives and FBI Most Wanted Terrorists
(170.) Section 301(a) of the Copyright Act explicitly prohibits states from enacting copyright
legislation. 17 U.S.C. [sections] 301(a) (1988). This exercise of legislative power by Congress rests
on the Article I, [sections] 8 grant of exclusive authority to "promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." U.S. Const. art I, [sections] 8.
Reformed Government of the Republic of China
(65.) 17 U.S.C. [sections] 506(a). While Title 17 defines criminal copyright infringement for financial
gain, prosecution of the actual piracy of copyrighted works is governed by 18 U.S.C. [sections] 2319
(1994). Mary I Mary I, 1516-58, queen of England
Mary I (Mary Tudor), 1516-58, queen of England (1553-58), daughter of Henry VIII and Katharine
of Aragn. . Saunders, Criminal Copyright Infringement and the Copyright Felony Act, 71 Deny. U.
L. Rev. 671 (1994) (examining nature of copyright protection and the offense of criminal copyright
infringement as defined by the Copyright Felony Act of 1992).
Any person who suffers damage or loss by reason of a violation
2. An academic seminar on a broad field of study, usually led by a different lecturer at each meeting.
of the Association Internationale de Droit [French, Justice, right, law.] A term denoting the
abstract concept of law or a right.
(177.) North, supra note 176, at S36.
(124.) Id.
The punishment for criminal copyright infringement is set forth in [sections] 2319 of title 18.(111)
Section 2319(b) provides variable prison terms and fines for copyright infringements through the
reproduction or distribution of phonorecords with a retail value of more than $2,500.(112) First-time
offenders who sell more than ten copies or phonorecords of a copyrighted work within an 180-day
period, could face up to five years in prison; subsequent offenders can face up to ten years
imprisonment Imprisonment
See also Isolation.
ECPA redirects here. For the Christian publishers association, see Evangelical Christian Publishers
Association
3. Cleverness or skill; ingenuity. to defraud or deceive, or control property or services by means of
false of fraudulent pretenses"). Cf. Colo. Rev. Stat. [sections] 18-17-103(5) (1990 & Supp. 1994)
(racketeering activity includes committing, attempting to commit, or conspiring to commit offenses
involving computer crimes, as defined in 18-5.5).
(99.) See United States v. LaMacchia, 871 F. Supp 535, 545 (D. Mass. 1994) (prosecutors failed to
prove breach of fiduciary duty Noun 1. fiduciary duty - the legal duty of a fiduciary to act in the best
interests of the beneficiary
legal duty - acts which the law requires be done or forborne essential for wire fraud conviction,
and failed to prove defendant benefited from venture essential for copyright infringement
conviction).
V. RECENT DEVELOPMENTS
b. National Stolen Property Act
(107.) 18 U.S.C. [sections] 1030(a)(1) (1994). The Guidelines set the base offense level for [sections]
1030(a)(1) at 35 if the information is top secret, and at 30 for all other information. U.S.S.G.
[sections] 2M3.2(a).
Alcatraz Island
v.tr.
1. To develop industry in (a country or society, for example).
The current version of the Computer Abuse Act, titled the Computer Abuse Amendments Act of
1994,(23) attempts to address the criticisms(24) of its previous version, the Computer Fraud and
Abuse Act of 1986.(25) The 1994 Act prohibits unauthorized, intentional access to federal interest
computers.(26)
(21.) See Marks, supra note 1, at 503-504 (advances in computer technology inevitably allow users
to develop new techniques to outstrip outstrip
tr.v. outstripped, outstripping, outstrips
1. To leave behind; outrun.
(31.) 18 U.S.C. [sections] 1030(a)(3) (1994).
b. National Stolen Property Act
Defenses to charges under the 1986 Act may also focus on undefined portions of the statutory
language.(49) However, in United States v. Morris,(50) the Second Circuit rejected a defense based
on ambiguities in the statutory language.(51) Furthermore, the 1994 Act may have closed some of
the loopholes if courts interpret the "reckless disregard reckless disregard n. grossly negligent
without concern for danger to others. Actually reckless disregard is redundant since reckless means
there is a disregard for safety. (See: reckless) " provision to reach programmers who introduce a
virus into a network by giving an innocent third party an infected program.(52)
(161.) Branscomb, supra note 158, at 34. See, e.g., Haw Rev Stat. [sections] 708-891(b) (1985 &
Supp. 1992) (a person commits computer fraud by "access[ing] or caus[ing] to be accessed any
computer, computer system, computer network, or any of its parts with the intent of obtaining
money, property or services by means or embezzlement or false or fraudulent representations"); Ariz
Rev. Stat. Ann. [sections] 13-2316 (1989) (computer fraud requires "the intent to devise or execute
any scheme or artifice artifice
n.
1. An artful or crafty expedient; a stratagem. See Synonyms at wile.
(72.) See United States v. Lyons, 992 F.2d 1029, 1033 (10th Cir. 1993) (rejecting defendant's claim
that Brown precludes consideration of the value of stolen software in determining sentencing under
the National Stolen Property Act).
(104.) H.R. Conf. Rep. No. 711, 103d Cong., 2d Sess. [sections] 330016 (1994), reprinted in 1994
U.S.C.C.A.N. 1839 (removing outmoded fines from 18 U.S.C. [subsections] 1030, 1341, 1343, 2314,
2314, 2511 (1994)).
(58.) Morris, 928 F.2d at 507.
of 1996
(75.) Arkin, supra note 63, at 3-77.
(209.) The Business Software Alliance together with the Mexican federal attorney's office, initiated a
1992 software piracy investigation which led to seizure of illegally reproduced software programs.
James Daly, Netherlands, Mexico Chase After Hackers, Computerworld, July 13, 1992, at 14.
(137.) See United States v. Sissler, No. 1:90-CR- 12, 1991 U.S. Dist. LEXIS 16465, at *11 (W.D.
Mich. Aug. 30, 1991) (because police "are permitted to search any container found within the
premises if there is reason to believe that the evidence sought pursuant to a warrant is in it . . .
police [are] permitted to examine the computer's internal memory and the disks since there was
every reason to believe that they contained records whose seizure was authorized by the warrant")
(citing United States v. Ross United States v. Ross, 456 U.S. 798 (1982), was a search and seizure
case argued before the Supreme Court of the United States. The high court was asked to decide if a
legal warrantless search of an automobile allows closed containers found in the vehicle (specifically,
in , 456 U.S. 798, 820-21 (1982)). Cf. United States v. Ponce, No. 91-50256, 1993 U.S. App. LEXIS
7462 *10-11 (9th Cir. Apr. 1, 1993), aff'd, 51 F.3d 820 (9th Cir. 1995) (affirming admission of
printout (PRINTer OUTput) Same as hard copy. made from computer disk seized in a search on
the grounds that the disk, from which the printout was made, contained a drug ledger and was found
at the defendant's home).
im vague and found the Act as a whole overbroad, finding that it chilled constitutionally protected
speech among adults in its effort to protect minors. ACLU, 929 E Supp. at 854-56. The New York
court held that the statute s use of the FCC's indecency standard defeated the vagueness claim, but
it invalidated the Act nonetheless for overbreadth. Shea, 930 F. Supp. at 936-941. Both opinions
contain detailed findings on the history, nature, and uses of the Internet, which may be of interest to
practitioners unfamiliar with the technology.
Punishment for a violation of the National Stolen Property Act may include either a fine under Title
18, imprisonment of not more than ten years, or both.(117) Defendants convicted of violating the
National Stolen Property Act are sentenced under [sections] 2B1.1.(118) The base offense level of
four is based upon a total loss to the victim of $100.(119) The offense level is raised as the financial
loss to the victim increases, up to a maximum increase of twenty offense levels for a loss exceeding
$80,000,000.(120) If the offense involved more than minimal planning, the offense level is increased
by two levels.(121) Additionally, if the defendant is a person in the business of receiving and selling
stolen property, the offense level is increased by four levels.(122)
(219.) 47 U.S.C. [sections] 223(d).
(60.) 18 U.S.C. [sections] 1030(a)(5)(B)(i) (1994).
(94.) See infra notes 146-168 and accompanying text (summary of state computer crime statutes).
, Netherlands, Mexico Chase After Hackers, Computerworld, July 13, 1992, at 14.
an electronic, magnetic, optical, electrochemical, or other high speed
A. Overview of State Criminal Codes
Any person who unlawfully copies and distributes software may be subject to punishment for
criminal copyright infringement Noun 1. copyright infringement - a violation of the rights secured by
a copyright
infringement of copyright
(42.) 18 U.S.C. [sections] 1030(c)(3)(B) (1994).
(197.) For example, German born Ernst Zundel operated a neo-Nazi web-page on a Santa Cruz,
California Server. See, Hiawatha Bray, UMass Shuts Down Web Site Containing Neo-Nazi Material;
Student Intended Protest of German Censorship, Boston Globe, Feb. 2, 1996, available in 1996 WL
6848660.
"Financial institution" is defined as:
1. Computer Fraud and Abuse Act
(83.) See Steve Jackson Games Steve Jackson Games (SJG) is a game company that creates and
publishes role-playing, board, and card games. It was founded in 1980 by Steve Jackson. History
Founded in 1980, six years after the birth of Dungeons & Dragons , 816 F. Supp. at 442 (holding that
affidavit supporting warrant to seize information from computer bulletin board was inadequate
under 18 U.S.C. [sections] 2703(d)), aff'd, 36 F.3d 457 (5th Cir. 1994).
(181.) See Richard Raysman and Peter Brown, Computer Law: Interpretation of New York 's
Tampering Statute, N.Y. L.J., Apr. 12, 1994, at 3. See generally People v. Johnson, 560 N.Y.S.2d 238,
241 (N.Y. Crim. Ct. 1990) (information charging defendant for the unauthorized use of a telephone
credit card number is facially sufficient since credit card numbers are central to a sophisticated
computerized communication system); State v. Moran, 784 F.2d 730, 734 (Ariz. Ct. App. 1989)
(defendant did not criminally damage his employer's program by encoding it because he did so with
his employer's permission; his refusal to decode was an omission, not an act, and criminal damage is
defined in Arizona as a crime of commission, not omission); People v. Weg, 450 N.Y.S.2d 957, 961-62
(N.Y. Crim. Ct.1982) (allegations that a computer programmer employed by a public agency used his
employer's computer for his own commercial benefit with the knowledge that he was not entitled to
do so, fail to make out the crime of theft of services Theft of services is the legal term for a crime
which is committed when a person obtains valuable services -- as opposed to goods -- by deception,
force, threat or other unlawful means, i.e., without lawfully compensating the provider of said
services. , since the computer was not used for profit in trade or commerce, but as an administrative
tool).
degenerate, deviant, deviate, pervert - a person whose behavior deviates from what is acceptable
especially in sexual behavior stored his victims' names in an encrypted computer file, thereby
thwarting police officials' efforts to identify them. See Steven Levy, Battle of the Clipper Chip, N.Y.
Times Mag., June 12, 1994, at 6.
(118.) U.S.S.G. App. A.
(91.) Report Summary, supra note 60, at 3; see, e.g., United States v. Morris, 928 F.2d 504, 505 (2d
Cir. 1991) (upholding defendant's conviction under [sections] 1030(a)(5) for introducing a "worm"
into the federal Internet computer See Internet appliance and network computer. network,
jamming up to 6,000 federal and federal interest computers across the country).
I. INTRODUCTION
Some of these questions may have been answered in Morris, 928 F.2d at 506, where the court
"accepted the government's view that 1986 amendments to the [Computer Fraud and Abuse Act]
eliminated any distinction between a break-in that damages files or steals money and what Morris
was found guilty of, intentional unauthorized access that prevented authorized use." Harold L.
Burstyn, Computer Whiz Guilty,, 76 A.B.A. J. 20 (1990). See also United States v. Sablan, 92 F.3d
865, 865 (9th Cir. 1996)(the government does not have to prove intentional damage to a computer
file but only intentional access without authorization).
Additionally, to convict under the wire fraud statute, the interstate communication must be
forseeable. United States v. Brumley, 59 F.3d 517, 521-522 (5th Cir. 1995) (Western Union's
interstate transfer of funds resulting from defendant's request to transfer to destination within his
state not forseeable, and thus defendant not liable under wire fraud statute).
(93.) See Gray H. Anthes, Federal Computer Crime Czar Speaks Out, Computerworld, May 22, 1995,
at 56 (chief of Computer Crime Unit in Criminal Division of Justice Department, Scott Charney,
discusses methods of improving enforcement of computer crime laws); Chris Nerney, Failure to
Report Break-Ins Offers License to Hack, Network World, Aug. 12, 1996, at 1 (giving reasons for
failure to report computer break-ins). One commentator has suggested that the Computer Fraud and
Abuse Act be amended to require businesses and others to report computer crimes committed
against them. In addition, a provision allowing civil remedies and restitution, as adopted in the 1994
Act, would provide additional incentives for victims to report computer crimes. A Measured
Response, supra note 21, at 487-89. See also S. 8, 103d Cong., 1st Sess. (1993) (proposing civil
remedies in computer crime cases); H.R. 2847, 103d Cong., 1st Sess. (1993) (providing civil
remedies for federal computer offenses under 1986 Act).
(37.) See American Computer Trust Leasing v. Jack Farrell For other persons named Jack Farrell,
see Jack Farrell (disambiguation).
Sandberg was born in Olympia, Washington. , French Hacker Cracks Netscape Code, Shrugging Off
U.S. Encryption Scheme, Wall St. J., Aug. 17, 1995, at B3.
5. Knowing, unauthorized use. These statutes prohibit the act of "accessing" or "using" computer
systems beyond the consent of the owner.(163)
(126.) U.S.S.G. [subsections] 2C1.7, 2F1.1. See, e.g., United States v. ReBrook, 58 F.3d 961, 969
(4th Cir. 1995) (upholding increase in offense level according to [sections] 2C1.7 (b)(1)(B) for wire
fraud conviction regarding video lottery systems as defendant was an official holding a high-level
decision-making or sensitive position); United States v. Catalfo, 64 F.3d 1070 (7th Cir. 1995)
(enhancement of sentencing for wire fraud by illegal computerized futures trading upheld because
defendant could have foreseen possible loss from his conduct and was therefore held accountable for
monetary loss under [sections] 2F1.1). For a complete explanation of these provisions, see the MAIL
AND WIRE FRAUD article in this issue.
2. Destruction. Many states criminalize criminalize
tr.v. criminalized, criminalizing, criminalizes
1. To impose a criminal penalty on or for; outlaw.
(132.) 799 F.2d 1494 (11th Cir. 1986).
(203.) Dutch Police See Hacking Surge, Computer Fraud and Security Bull., Jan. 1993.
(228.) Id. at 709.
For other explanations of the lack of diligence in prosecuting computer crimes, see Michael Todd
Friedman, Comment, The Misuse of Electronically Transferred Confidential Information in Interstate
Commerce: How Well Do Our Present Laws Address the Issue ?, 4 Software L.J. 529, 552-53 (1991)
(the laws may have gaping holes which make enforcement problematic); Hollinger & Lanza-Kaduce,
supra note 5, at 117 (the laws may be more symbolic than functional); Brenda Nelson, Note,
Straining the Capacity of the Law: The Idea of Computer Crime in the Age of the Computer Worm A
computer worm is a self-replicating computer program. It uses a network to send copies of itself to
other nodes (computer terminals on the network) and it may do so without any user intervention.
Unlike a virus, it does not need to attach itself to an existing program. Straining the Capacity of
the Law: The Idea of Computer Crime in the Age of the Computer Worm, 11 Computer L.J. 299, 320-
21 (1991) (present laws may be incorrectly conceived). For an interesting discussion of the problems
with ex post measures to prevent abuse, see Dierks, supra note 180, at 330-36.
(198.) After threats of prosecution under German law, CompuServe, Germany's largest Internet
provider Internet provider - Internet Service Provider , decided to ban access to over 200 UseNet
Newsgroups to all of its customers world wide. See, Kate Gerwig, CompuServe Caves In: What
Happens When a Local Government Tries to Police Its Borders in a Borderless Medium?, NetGuide,
Mar. 1, 1996, available in 1996 WL 8536961.
(51.) Moms was prosecuted for releasing a "worm" into a computer network which spread to
thousands of other computers and prevented access by duplicating itself so many times that the
computer crashed. Id. at 505-06. He argued that under [sections]1030(a)(5) of the 1986 Act, the
government was required to prove not only that he intended unauthorized access to a federal
interest computer, but also that he intended to prevent others from accessing the federal interest
computer. Since he possessed authorized access to the computer, he argued that he could not be
prosecuted under the statute because his only wrong was to exceed the scope of his authorization.
Id. at 511. The Second Circuit, based on its reading of the legislative history, rejected this argument.
The court found that the drafters of the Act, cognizant that people with authorized access to a
federal interest computer might try to gain unauthorized access to other federal interest computers,
did not intend for authorization for some federal interest computers to constitute authorization for
all federal interest computers. Id. Thus, the statute applied to Morris, although the court noted that
this defense was not categorically invalid, since a situation could arise which "falls within a nebulous
area in which the line between accessing [a computer] without authorization and exceeding
authorization might not be clear." Id.
COPYRIGHT 1997 Georgetown University Law Center
No portion of this article can be reproduced without the express written permission from the
copyright holder.
(178.) Id. The virtual absence of reported decisions involving federal prosecutions for criminal
software infringement indicates a lack of enforcement in this area. If this is true, then Rosciszewski
may overburden overburden
tr.v. overburdened, overburdening, overburdens
1. To burden with too much weight; overload.
(229.) Id. at 710.
(141.) State v. Wade, 544 So.2d 1028, 1030 (Flat Dist. Ct. App.1989) (permitting use of competitor's
employees to identify items).
B. Enforcement Strategies
(A) an institution with deposits insured by the Federal Deposit Insurance Corporation Federal
Deposit Insurance Corporation (FDIC), an independent U.S. federal executive agency designed to
promote public confidence in banks and to provide insurance coverage for bank deposits up to
$100,000. ;
Although few reported cases have considered the conflict between federal copyright law and state
computer crime statutes,(175) the reasoning in Rosciszewski could probably invalidate several other
state laws implicating federal intellectual property laws.(176) As one commentator observed, the
Rosciszewski decision may seriously hamper states' efforts to prosecute computer criminals.(177) As
the volume and economic harm caused by computer crimes grows, state and federal law
enforcement resources will be increasingly taxed. Rosciszewski, by foreclosing any state prosecution
of conduct involving computer software, would put the burden increasingly on a federal legal system
which, thus far, has not actively prosecuted in this area.(178)
(77.) 18 U.S.C. [sections] 1346 (1994); see also Arkin, supra note 63, at 3-33 (intangible property
intangible property n. items such as stock in a company which represent value but are not actual,
tangible objects. is covered by federal mail and fraud statutes).
(162.) Branscomb, supra note 158, at 34. See, e.g., Ala. Code [sections] 13A-8-102 (1994)
(unauthorized access, modification, destruction, or disclosure of computer programs or data
constitutes a crime against intellectual property); Miss. Code Ann. [sections] 97-45-1, 97-45-9 (1994)
(intentional and unauthorized "destruction, insertion or modification," "disclosure, use, copying,
taking or accessing" of data, computer programs for software, and "confidential or proprietary
information in any form or medium when such is stored in, produced by or intended for use or
storage with or in a computer, a computer system or a computer network" is an offense against
intellectual property).
Since attempts to apply general criminal codes to computer-related offenses were largely
unsuccessful,(146) and because of the serious economic threats posed by such crime, states began
to enact statutes specially drafted for the emerging computer technologies.(147) The first
specialized computer crime statute was enacted in Florida in 1978.(148) Since then, every state
except Vermont has enacted some form of computer-specific criminal statute.(149) The precise
definitions and penalties in these specialized provisions offer significant advantages over general
criminal codes by explicitly addressing the unique issues posed by computer crimes, thereby
promoting computer security, enhancing deterrence, and facilitating prosecution.(150) Recent
reforms in state computer crime statutes have featured provisions expanding forfeiture of computer
equipment used in crimes, with several states enacting provisions which allow state authorities to
seize property involved in computer crimes.(151) While Federal law does not yet define any crimes
relating to the sending of electronic mail,(152) a few states have begun to respond to the growing
concerns of on-line harassment Ask a Lawyer
(70.) See United States v. Jones, 553 F.2d 351, 356 (4th Cir. 1977) (holding that fraudulent diversion
of funds by computer violates National Stolen Property Act).
(110.) But see, e.g., United States v. DeMonte, 25 F.3d 343, 349 (6th Cir. 1994) (affirming
justification for downward departure from sentencing guidelines for computer fraud where
defendant had exhibited an extraordinary level of cooperation); United States v. Riggs, 967 F.2d
561, 563 (11th Cir. 1992) (departing upward from sentencing guideline for violation of [sections]
1030 and requiring period of supervised use of computers, where the defendant had previously
committed similar crimes).
v.tr.
1. To appropriate, seize, or take for oneself before others. See Synonyms at appropriate.
(131.) 18 U.S.C. [sections] 2701(b)(2) (1994).
B. Enforcement Strategies
n.
1. the federal system. Id.
3. a table in [sections] 2F1.1 if the loss to the government or the value gained by a public official
exceeds $2000. If the offense involves an elected official or one holding a decision-making or
sensitive position, the offense level is increased by eight.(126)
"It is found and determined that computer-related crime poses a major
(54.) 92 F.3d 865 (9th Cir. 1996).
(53.) The court in Morris stated that the worm affected computers at "numerous installations" and
that fixing the problem cost anywhere from $200 to $53,000.928 F.2d at 506.
used to protect the information stored in them. Obviously, the police was
(39.) See Bradley S. Davis, Note, It's Virus Season Again, Has Your Computer Been Vaccinated? A
Survey of Computer Crime Legislation as a Response to Malevolent Software, 72 WASH. U. L.Q.
411, 438-440 (1994) (discussing application of the 1994 Act in its then-proposed form to creators of
computer viruses).
In Rosciszewski v. Arete arte
n.
A sharp, narrow mountain ridge or spur.
(194.) Computer-Related Crime, supra note 186, at 494.
something that causes contamination. " defined to include viruses and worms and other sets of
instructions designed to "usurp usurp
v. usurped, usurping, usurps
James Daly, 1st Baron Dunsandle and Clanconal (1782-1847) was an MP for County Galway, Ireland.
2. To exceed or surpass: "Material development outstripped human development" patchwork
computer legislation); See also Dodd S. Griffith, Note, The Computer Fraud and Abuse Act of 1986:
A Measured Response to a Growing Problem, 43 Vand. L. Rev. 453, 482-83 (1990) (drafting
legislation is difficult because of a lack of concrete knowledge about the problem) (hereinafter A
Measured Response).
While "computer crime" remains loosely defined, most industrialized industrialize
v. industrialized, industrializing, industrializes
(73.) 18 U.S.C. [subsections] 1341, 1343 (1994). See generally MA[L AND WIRE FRAUD article in
this issue.
watch Susanna bathe. . Computers contain a wide range of confidential personal information. To
protect the public's right to privacy in this information, several states have enacted laws
criminalizing unauthorized access to a computer system even if only to examine its contents and not
make any changes or extract any data.(167)
(123.) 18 U.S.C. [subsections] 1341, 1343 (1994).
Defendants convicted of mail and wire fraud are subject to sentencing provisions under
[subsections] 2C1.7 and 2F1.1.(125) The base offense level is ten, and is raised according to
according to
prep.
1. As stated or indicated by; on the authority of: according to historians.
(120.) U.S.S.G. [sections] 2B1.1(b).
im access to computer programs and data under computer crime statutes.(184)
Adj. 1. difficulties of proving unauthorized access to or modification of a computer system have led
to the result that only a handful of cases involving computer-related crime have been prosecuted in
state courts,(181) and most have dealt with defining the meaning of the terms used in the particular
state statute.(182)
(56.) See Michael C. Gemignani, Viruses and Criminal Law, 32 Communications of the ACM
(publication) Communications of the ACM - (CACM) A monthly publication by the Association for
Computing Machinery sent to all members. CACM is an influential publication that keeps computer
science professionals up to date on developments. 669 (1991) (discussing loopholes in the federal
Computer Fraud and Abuse Act).
Computer infiltration may already be an effective weapon of war. United States intelligence agents
reportedly planted a computer virus in Iraqi military computers to disable To turn off; deactivate.
See disabled. the Iraqi air defense network during the 1991 Persian Gulf War. Special Report; The
Gulf War Flu, U.S. News & World Rep., Jan. 20, 1992, at 50. Contra Report of Sabotage to Iraq
Computer May Be Hoax, Chi. Trim., Jan. 14, 1992, at 6.
(125.) U.S.S.G. App. A.
(183.) See Newberger v. Florida, 641 So.2d 419, 421 (Flat Dist. Ct. App. 1994) (applying the
interpretation of "alter" in People v. Versaggi, 629 N.E.2d 1034, 1034 (N.Y. 1994), in rejecting the
defendant's vagueness challenge to Fla. Stat. [sections] 815.04 (1993 & Supp. 1994), but concluding
that defendant, unlike Versaggi, had not used the computer program to do something which
changed what the system was designed to do); Versaggi, 629 N.E.2d 1034, 1038-39 (N.Y. 1994)
(interpreting N.Y. Penal Law [sections] 156.20 (McKinney 1988 & Supp. 1995) to uphold the
conviction of a former Eastman Kodak computer technician who secretly activated built-in computer
commands to shut down the company's telephone system, holding that the legislature also meant to
criminalize changes or modifications of the program's intended purpose); State v. Bonnie
bonny also bonnie
adj. bonnier, bonniest Scots
1. Physically attractive or appealing; pretty.
(67.) See United States v. LaMacchia, 871 F. Supp. 535, 536, 541 (D. Mass. 1994) (holding that
although defendant's usage of bulletin board to facilitate copying of copyrighted computer software
caused an estimated loss of one million dollars, government cannot prosecute under criminal
computer copyright infringement if it cannot show that defendant sought or derived personal
benefit). See also Susan H. Nycum, International Issues of Data Protection and Data Providing in the
Online Environment, 444 PLI/Pat 367 (1996) (explaining that following LaMacchia, Congress is
considering legislation to criminalize the willful infringement of a copyright by reproducing or
distributing copies with a $5,000 or more retail value).
(49.) 18 U.S.C.A [sections] 1030(a)(5)(1994).
The National Stolen Property Act(68) prohibits the transportation in interstate commerce of "any
goods, wares, securities or money" valued at $5,000 or more and known to be stolen or fraudulently
obtained.(69) This statute has been applied to various computer-related crimes, including fraudulent
computerized transfers of funds.(70) Courts have held that computer software does not constitute
"goods" or "wares" under the National Stolen Property Act if the programs were solely in an
intangible form.(71) However, courts have distinguished theft of software alone from theft of
tangible hardware, determining that the latter constitutes "goods" and "wares" as protected by the
National Stolen Property Act.(72)
Montgomery County, Alabama
(232.) 937 F. Supp. 295 (S.D.N.Y. 1996).
Law enforcement officials fear that the development of encryption devices will further hinder their
ability to enforce computer crime laws. Powerful encryption software Encryption software is
software whose main task is encryption and decryption of data, usually in the form of files on hard
drives and removable media, email messages, or in the form of packets sent over computer
networks. has become increasingly accessible, enabling users to effectively prevent even the
National Security Agency from decoding messages.(96)
(231.) Id. at 865.
18 U.S.C. [sections] 1030(e)(4) (1994).
a. Copyright Act
(74.) 18 U.S.C. [subsections] 1341, 1343 (1994).
(3.) The FBI's National Computer Crime Squad was created by the government to address the
computer crime industry that may be costing up to $5 billion annually. Gordon Witkin, Wanted, in
Cyberspace Coined by William Gibson in his 1984 novel "Neuromancer," it is a futuristic computer
network that people use by plugging their minds into it! The term now refers to the Internet or to
the online or digital world in general. See Internet and virtual reality. Contrast with meatspace.
Hacker Crime, U.S. News & World Rep., Mar. 14, 1994, at 71. The Business Software Alliance
estimated lost revenue from software piracy at $ 15 billion a year. Elizabeth Corcoran, In Hot
Pursuit of Software Pirates; Industry Sends out Private Investigators to Fight $15 Billion Trade in
Illicit Copying, Wash. Post, Aug. 23, 1995, at F1. See also United States v. LaMacchia, 871 F Supp F
SUPP Federal Supplement (decisions of US district courts) . 535, 540 (D. Mass. 1994) (software
piracy was costing $2.4 billion in lost revenues annually, as reported, in 1992, by the Software
Publishers Association to the Subcommittee on Intellectual Property and Judicial Administration of
the House Committee on the Judiciary Committee on the Judiciary may mean:
J.
2. First Amendment Issues III. STATE APPROACHES
(40.) 18 U.S.C. [sections] 1030(a)(6) (1994).
(112.) 18 U.S.C. [sections] 2319(b)(1)-(3) (1994).
Info. Servs. v. Maclean Hunter Market Reports, 44 F.3d 61 (2d Cir. 1994) (explaining that the
standard of originality in the selection and arrangement of information to achieve copyright
protection required by Feist is low); see also Charles Von Simson, Feist or Famine: American
Database Copyright as an Economic Model for the European Union, 20 Brook. J. Int'l L.729 (1995)
(noting that circuit courts are split interpreting Feist).
The statute proscribes six types of illegal activities.(27) Sections 1030(a)(1)-(3) prohibit
unauthorized access of a computer: (1) to obtain information relating to relating to relate prep ->
concernant
John Nolan is the lead singer of Straylight Run and the former lead guitarist/co-vocalist of Taking
Back Sunday. Biography , Reinstated Charges Sought Against Man in E-mail Torture Case, The Plain
Dealer (Cleveland), Aug. 17, 1996, at 5B (discussing appeal of United States v. Baker United States
v. Baker was a case brought against University of Michigan undergraduate Jake Baker related to
several incidents regarding snuff stories that he wrote while he was a student at the University of
Michigan. Baker was charged with violation of 18 U.S.C. , 890 F. Supp. 1375 (E.D.Mich. 1995)).
(79.) 18 U.S.C. [subsections] 2510-2521, 2701-2710 (1994).
Notes:
The word "paradigm" is defined as a pattern or model, and it has been used in science to refer to a
theoretical framework. : General Report for the Association Internationale de Droit Penal
Colloquium 64 Rev. Int'l de Droit Penal 79, 97-109 (1993) (discussing patterns of convergence with
regard to unauthorized access, unauthorized interception, unauthorized use of a computer,
alteration of data or programs, computer sabotage, computer espionage, unauthorized use or
reproduction of a computer program, unauthorized reproduction of a topography, computer forgery,
and computer fraud).
damage.
(8.) Criminal Justice Resource Manual, supra note 2, at 2.
(235.) For a discussion of the compuserve and Inset cases and the issues raised therein, see Richard
Baysman and Peter Brown. Resolving Jurisdiction
A. Federal Criminal Code
(145.) Id. at 440. Preliminary injunctions have been issued on First Amendment grounds to prevent
the enforcement of portions of the Computer Decency Act of 1996. See infra Part V. Recent
Developments. Those portions of the Computer Decency Act criminalizing the use of computer
services Data processing (timesharing, batch processing), software development and consulting
services. See service bureau, SaaS and ASP. to display patently offensive or indecent material
available to persons under the age of eighteen were declared overbroad. See Shea v. Reno, 930 F.
Supp. 916 (S.D.N.Y. 1996) (granting preliminary injunction); ACLU ACLU: see American Civil
Liberties Union. v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) granting preliminary injunction).
(179.) Ark. Code Ann. [sections] 5-41-105 (Michie 1993); Del. Code Ann. tit. 11, [sections] 938
(1995); Ga. Code Ann. [sections] 16-9-94 (1992); Ky. Rev. Stat. Ann. [sections] 434.860
(Michie/Bobbs-Merrill 1985); Miss. Code Ann. [sections] 97-45-11 (1994); N.H. Rev. Stat. Ann.
[sections] 638:19 (1986); S.C. Code Ann. [sections] 16-16-30 (Law. Co-op. 1985); S.D. Codified Laws
Ann. [sections] 43-43B-8 (Supp 1995); Tenn. Code Ann. [sections] 39-14-603 (1991); VA. CODE ANN.
[sections] 18.2-152.10 (Michie 1988 & Supp. 1995); W. Va. Code [sections] 61-3C-18 (1992).
The following legislatures exist in the following political subdivisions:
Telecom, Inc. v. Long Distance Servs., Inc., 18 F.3d 260 (4th Cir. 1994) (civil action under RICO
RICO n. . based on violations of [subsections] 1341 and 1343 where reseller of long distance
telephone service used computer program to randomly add minutes to calls of customers), cent
denied, 115 S. Ct. 323 (1994); United States v. Seidlitz, 589 F.2d 152, 155 (4th Cir. 1978) (former
employee's unauthorized attempt to access computer to obtain company property violated wire fraud
statute); United States v. Slusher, 1995 WL 417077 (S.D.N.Y. July 13, 1995) (determining that
exchange of DMV DMV
abbr.
Department of Motor Vehicles license approval for bribes through DMV's computer terminals
constitutes violation of wire fraud statute); United States v. Upton, 856 F. Supp.727, 733 (E.D.N.Y
1994) (finding that defendants falsified computer transactions regarding airplane maintenance).
(122.) U.S.S.G. [sections] 2B1.1(b)(5)(B).
(44.) 18 U.S.C. [sections] 1030(a)(3) (1994).
Question
Country: United States of America
State: Nevada
Montgomery County, Georgia
(34.) 18 U.S.C. [sections] 1030(a)(5) (1994). However, it is unclear whether there is a loss if
malevolent software, such as a virus, does not destroy files, but simply overloads the network, thus
slowing down processing speed or using up some of a system's underutilized capacity.
A service mark used for an organization that provides family planning services.
Violations of the mail and wire fraud statutes are punishable by fines, imprisonment of up to five
years, or both.(123) If the violation affects a financial institution, the punishment is a fine of not
more than $1,000,000, imprisonment of not more than thirty years, or both.(124)
Telecommunications Act 1997 in Australia
If violation of [sections] 2701(a) is for financial gain, a first time offender shall be fined under Title
18, imprisoned for not more than one year, or both.(129) A repeat offender shall be fined according
to Title 18, imprisoned for not more than two years, or both.(130) Other violations of [sections]
2701(a) could result in fines under Title 18, a maximum imprisonment of six months, or both.(131)
e. Telecommunications Act of 1996
(92.) Report Summary, supra note 61, at 3-4.
whomever
pron
(167.) Branscomb, supra note 158, at 36. See, e.g., Mo. Rev. Stat. Ann. [sections] 569.095(5) (Supp.
1996) (computer tampering occurs when a person "[a]ccesses a computer, computer system, or a
computer network, and intentionally examines information about another person"); W. VA. CODE
[sections] 61-3C-12 (1992) (to commits "[c]omputer invasion of privacy invasion of privacy n. the
intrusion into the personal life of another, without just cause, which can give the person whose
privacy has been invaded a right to bring a lawsuit for damages against the person or entity that
intruded. " an offender must "knowingly, willfully, and without authorization access[] a computer or
computer network and examine[] any employment, salary, credit or any other financial or personal
information relating to any other person."). But see Ky. Rev. Stat. Ann. [sections] 434.845(2)
(Michie/Bobbs-Merrill 1985) (unauthorized access, even if obtained fraudulently, "shall not
constitute a violation . . . if the sole purpose of the access was to obtain information".)
(136.) United States v. Musson, 650 F. Supp. 525, 532 (D. Colo. 1986).
(101.) See Barton, supra note 95. See, e.g., Rajiv Chandrasekaran Rajiv Chandrasekaran is an
American journalist. He is currently assistant managing editor of The Washington Post, where he
has worked since 1994. Originally from the San Francisco Bay area, he holds a degree in political
science from Stanford University, where he was , Undercover on the Dark Side of Cyberspace, Wash.
Post, Jan. 2, 1996, at D1 ("Innocent Images" investigation produces arrests for solicitation of minors
after suspects arranged sexual meetings with FBI agent posing as minors on a on-line service);
Computer Pedophile pedophile Forensic psychiatry A person with pedophilia; there are an
estimated 500,000 pedophiles in the world. See Child prostitution, Megan's law, Pedophilia. Link
Feared, Newsday, Oct. 7, 1994 at A5 (pedophiles use computer bulletin boards to meet victims);
Sandy Rovner, Molesting Children by Computer, Wash. Post, Aug. 2, 1994, at Z15 (minors give out
information on bulletin boards that makes them vulnerable to assault).
(98.) For a list of well known hackers see Cyberblotter The Internet's Most Wanted Most Wanted
may refer to:
2. requirement of the Fourth Amendment must be applied flexibly, and in cases involving a
"pervasive scheme to defraud, all the business records of the enterprise may properly be
seized."(135) The seizure of computer disks is allowed even when the warrant refers only to records
and documents.(136) Police with a warrant to seize records may search computer hardware and
software so long as they have reason to believe that the items contain records whose seizure is
covered by the warrant.(137) When police conduct such a search, they may seize and examine a
disk, even if its label indicates that it does not contain information within the scope of the
warrant.(138) The police may take the hardware and software off the premises to conduct their
examination.(139) They may not, however, seize peripheral items, such as printers, to assist them in
their review of the seized items.(140) Finally, assistance of advisers to identify computer-related
items encompassed by a search warrant is permissible.(141)
The growth of state computer crime legislation has created conflicts between federal and state
authorities in prosecuting computer criminals. State computer crime laws have criminalized a broad
range of conduct including unauthorized access, computer fraud, and theft or misuse of computer
programs and user time on shared networks.(169) Those state statutes dealing with theft or misuse
of copy rightable material, such as computer programs, raise an immediate federalism federalism.
(173.) 1 F.3d at 230. (174.) Id.
The reason for the scarcity of prosecutions under the 1984 and 1986 Acts is unclear, but three
possible causes warrant consideration. First, there are not many reported instances of computer
crimes involving "federal interest" computers. Furthermore, owners of large federal interest
computers may prefer to handle security problems themselves to avoid the embarrassment of a
public trial focusing on the vulnerability of their computers.(93) It remains to be seen whether the
broadened scope of the 1994 Act and its provision of civil remedies will lead to increased
prosecution. Second, computer crimes which might be characterized as federal crimes may instead
be prosecuted under state computer crime laws. As more people are successfully prosecuted under
state computer crime laws, prosecutions in the federal sphere may be encouraged.(94) Third, many
prosecutors are limited by laws originally designed to target other media which fail to effectively
include computer crime or that are too inflexible to encompass advancing technology.(95)
4. Crimes against intellectual property. This type of statute defines new offenses in terms that are
analogous to trespassing (unauthorized computer access), vandalism (maliciously altering or
deleting data), and theft (copying programs or data). No actual damage is required to prosecute
under such a statute.(162)
(45.) 18 U.S.C. [sections] 1030(b) (1994).
(234.) 89 F.3d 1257 (6th Cir. 1996).
, Note, Computer Crime: White-Collar Crime white-collar crime, term coined by Edward Sutherland
for nonviolent crimes committed by corporations or individuals such as office workers or sales
personnel (see white-collar workers) in the course of their business activities. Fourth Survey of
Legal Substantive Crimes, 24 Am. Crim. L. Rev. 429, 430-432 (1987) (review of pre-1984 federal
prosecution of computer-related crime).
Id. See also Morris, 928 F.2d at 507 (extending the interpretation of federal interest computers to
include many privately owned computers); United States v. Fernandez, No. 92-CR-563, 1993 WL
88197 (S.D.N.Y. Mar. 25, 1993) (rejecting the argument that the words "used in committing the
offense" in [sections] 1030(e)(2)(B) are unconstitutionally vague because they describe the crime
through reference to the offense itself and stating that "Federal interest computer" relates only to
the federal courts jurisdiction).
In addition to the criminalization of new computer offenses, many nations are facing the problem of
the "computerization" of traditional offenses. Countries which are restrictive in their political
discourse are facing the problem that the Internet provides a source of "illegal" information which is
difficult to regulate.(195) Moreover, what is "acceptable" speech in the various countries on the
"information super-highway" differs greatly. In Germany, for example, the dissemination of Nazi
propaganda Nazi Germany was noted for its psychologically powerful propaganda, much of which
was centered around Jews, who were consistently alleged to be the source of Germany's economic
problems. denying the Holocaust is illegal.(196) Such material, however, is easily accessible via
the World Wide Web.(197) While Germany has chosen to target Internet Service providers in their
efforts to curb this problem,(198) it is conceivable that nations may begin targeting the individuals
who create "objectionable" home-pages.
(187.) See generally the Financial Institutions Fraud and Securities Fraud articles in this issue. See
also Growing EFTPOS EFTPOS - Electronic Funds Transfer Point of Sale Fraud in Europe
Warning, Telecomworldwire, Apr. 20, 1995, available in WESTLAW Westlaw
(7.) Some argue that computer offenders are changing from mischievous, thrill-seeking teenagers to
criminals intent on making large profits. William C. Flanagan & Brigid McMenamin, The Playground
Bullies are Learning How to Type, Forbes, Dec. 21, 1992, at 184. As they move into adulthood, many
hackers are marketing their skills as security consultants. Larry Lange, Trust a Hacker Over 30?
You'd Better, Electronic Engineering Times, Aug. 19, 1996, at 4. By contrast, a Russian software
engineer and five accomplices stole $10 million from Citibank between June and October 1994 in
one of the most professional computer heists yet reported Amy Harmon, Hacking Theft of $10
Million from Citibank Revealed, L.A. Times, Aug. 19, 1995, at D1. There is also evidence that
organized crime is extending its reach to high-tech came. Robert Kruger, Drugs, Guns and
Counterfeit Software-Organized Crime has Entered the Counterfeit Software Business, Windows,
Aug. 1, 1996, at 55; Joshua Cooper Ramo, Online Mobsters Mobsters is a 1991 crime drama
detailing the creation of the National Crime Syndicate/The Commission. Set in New York City during
the Prohibition era, it's a somewhat fictionalized account of rise of Charles "Lucky" Luciano, Meyer
Lansky, Frank Costello, and Benjamin "Bugsy" from Around the World are Wiring for the Future:
Can the Cops Keep Up?, Time, Sept. 23, 1996, at 32. For a look at how law enforcement officials are
attempting to crack down on the more youthful offenders youthful offenders n. under-age people
accused of crimes, who are processed through a juvenile court and juvenile detention or prison
facilities. In most states a youthful offender is under the age of 18. , see generally Bruce Sterling For
other persons named Bruce Sterling, see Bruce Sterling (disambiguation).
In one instance, a defense based solely on questioning the method for determining losses proved
successful. In 1990, a college student faced up to sixty years in prison and a fine of up to $ 122,000
in connection with charges that he published a purloined electronic memo about a telephone
company's 911 system. Rosalind Resnick, The Outer Limits, Nat'l L.J., Sept. 16, 1991, at 32. The
telephone company, by factoring in hardware expenses, software expenses, and administrative costs,
valued the file at $79,000. Dispute Over Hacked Bell South 911 Document Lingers in Texas Case,
Comm. Daily, Sept. 9, 1991, at 2. Later, after it emerged that the same information that was in the
memo was available to the public in non-computerized form for about twenty dollars, the charges
were dropped. Id.
compensatory damages and injunctive relief injunctive relief n. a court-ordered act or prohibition
against an act or condition which has been requested, and sometimes granted, in a petition to the
court for an injunction. or other equitable relief.
1. Computer Abuse Amendments Act of 1994
This article tracks developments in computer-related criminal law and legal literature. An analysis of
federal computer crime legislation and enforcement, and a discussion of state and international
approaches are presented in the article. Finally, recent developments in this area are reviewed.
Some states also recognized the threat to privacy interests. See Cal. Penal Code [sections] 502
(Deering 1983 & Supp. 1995) ("The Legislature further finds and declares that protection of the
integrity of all types and forms of lawfully created computers, computer systems, and computer data
is vital to the protection of the privacy of individuals as well as to the well-being of financial
institutions, business concerns, governmental agencies, and others within this state that lawfully
utilize those computers, computer systems, and data.").
The term jurist is ordinarily applied to individuals who have gained respect and recognition by their
writings on legal topics.
(105.) 18 U.S.C. [sections] 1030(c) (1994).
(147.) The Arkansas state legislature A state legislature may refer to a legislative branch or body of
a political subdivision in a federal system.
2. Other Statutes
(90.) See Joseph B. Thompkins, Jr. & Frederick S. Ansell, Computer Crime: Keeping Up with High
Tech Criminals, 1 Crim. Just. 30, 32 (1987) (discussing United States v. Fadriquela, No. 85-CR-40 (D.
Colo. 1985)).