Academic journal article
By Kleindienst, Katherine T.; Coughlin, Theresa M.; Pasquarella, Jill K.
American Criminal Law Review , Vol. 46, No. 2
I. INTRODUCTION A. Defining Computer Crime B. Types of Computer-Related Offenses 1. Object of Crime 2. Subject of Crime a. Spam b. Viruses c. Worms d. Trojan Horses e. Logic Bombs f. Sniffers g. Denial of Service Attacks h. Web Bots & Spiders 3. Instrument of Crime II. GENERAL ISSUES A. Constitutional Issues 1. First Amendment 2. Fourth Amendment B. Other Issues III. FEDERAL APPROACHES A. Sentencing Guidelines B. Federal Statutes 1. Child Pornography Statutes a. Communications Decency Act of 1996 b. Child Pornography Prevention Act of 1996 2. Computer Fraud and Abuse Act a. Offenses Under the Statute b. Jurisdiction c. Defenses d. Penalties 3. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 4. Copyright Statutes a. Criminal Copyright Infringement in the Copyright Act i. Defenses ii. Penalties b. Digital Millennium Copyright Act 5. Electronic Communications Privacy Act a. Stored Communications Act b. Title III (Wiretap Act) i. Defenses ii. Penalties c. Statutory Issues 6. Identity Theft a. Penalties 7. Wire Fraud Statute C. Enforcement IV. STATE APPROACHES A. Overview of State Criminal Codes B. Jurisdiction C. Enforcement V. INTERNATIONAL APPROACHES A. Issues B. Solutions
This Article discusses federal, state, and international developments in computer-related criminal law. This Section defines computer crimes. Section II covers the constitutional issues concerning computer crimes. Section III describes the federal approaches used for prosecuting computer crime, and analyzes enforcement strategies. Section IV examines state approaches to battling computer Crime and the resulting federalism issues. Lastly, Section V addresses international approaches to regulating computer crimes.
A. Defining Computer Crime
The U.S. Department of Justice ("DOJ") broadly defines computer crime as "any violations of criminal law that involve a knowledge of computer technology for their perpetration, investigation, or prosecution." (1) Because of the diversity of computer-related offenses, a narrower definition would be inadequate. While the term "computer crime" includes traditional crimes committed with the use of a computer, (2) the rapid emergence of computer technologies and the exponential expansion of the Internet (3) spawned a variety of new, technology-specific criminal behaviors that must also be included in the category of "computer crimes." (4) To combat these new criminal behaviors, Congress passed specialized legislation. (5)
Experts have had difficulty calculating the damage caused by computer crimes due to: the difficulty in adequately defining "computer crime;" (6) victims' reluctance to report incidents for fear of losing customer confidence; (7) the dual system of prosecution; (8) and the lack of detection. (9) In 2006, DOJ's Bureau of Justice Statistics and the Department of Homeland Security's National Cyber Security Division conducted a joint effort to estimate the number of cyber attacks and the number of incidents of fraud and theft of information. (10)
B. Types of Computer-Related Offenses
1. Object of Crime
DOJ divides computer-related crimes into three categories according to the computer's role in the particular crime. (11) First, a computer may be the "object" of a crime. (12) This category primarily refers to theft of computer hardware or software. Under state law, computer hardware theft is generally prosecuted under theft or burglary statutes. …