Ditzion, Robert, Geddes, Elizabeth, Rhodes, Mary, American Criminal Law Review
I. INTRODUCTION A. Defining Computer Crime B. Types of Computer-Related Offenses II. FEDERAL APPROACHES A. Federal Criminal Code 1. National Information Infrastructure Protection Act of 1996 a. Offenses Under the Statute b. Jurisdiction c. Defenses i. Jurisdiction ii. Statutory Interpretation iii. Amount of Damages d. Sentencing 2. Other Statutes a. Copyright Statutes i. Copyright Infringement Act and No Electronic Theft Act ii. Digital Millennium Copyright Act b. National Stolen Property Act c. Mail and Wire Fraud Statutes d. Electronic Communications Privacy Act e. Child Pornography Statutes i. Communications Decency Act of 1996 ii. Child Online Protection Act of 1998 iii. Child Pornography Prevention Act of 1996 f. Internet False Identification Prevention Act of 2000 B. Enforcement Strategies C. Constitutional Issues 1. Interstate Commerce Clause 2. First Amendment 3. Fourth Amendment D. Statutory Issues III. STATE APPROACHES A. Overview of State Criminal Codes B. Issues of Jurisdiction C. Enforcement IV. INTERNATIONAL APPROACHES A. Internet-Related Regulation B. International Convergence and Cooperation
This Article discusses developments in computer-related criminal law. As crimes committed with computers are often not limited by state or national boundaries, it is important to examine federal, state, and international approaches to computer crime legislation and enforcement. This Section defines computer crimes. Section II describes the federal statutes used for prosecuting computer crimes, analyzes enforcement strategies, and constitutional and statutory issues involving computer crimes. Section III examines state approaches to battling computer crime and resulting federalism issues. Lastly, Section IV addresses international approaches to regulating the Internet as well as the recent cooperation among nations to combat computer crimes.
A. Defining Computer Crime
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 not be adequate. 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) have spawned a variety of new, technology-specific criminal behaviors that must also be included in the category of "computer crimes." (4) As a result, there has been a dramatic increase in specialized legislation to combat these new criminal behaviors. (5)
Experts have had difficulty calculating the damage caused by computer crimes due to: (i) the difficulty in adequately defining what is a computer crime; (6) (ii) victims' reluctance to report incidents for fear of losing customer confidence; (7) (iii) the dual system of prosecution; (8) and (iv) the lack of detection. (9) However, estimates put the yearly loss to the United States in the billions of dollars. (10)
B. Types of Computer-Related Offenses
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. (13) Second, a computer may be the "subject" of a crime, (14) In this category, the computer is akin to the pedestrian who is mugged or the house that is robbed--it is the subject of the attack and the site of any damage caused. This category encompasses all of the crimes that have arisen out of the technology explosion of the last several decades, including the use of often interrelated "viruses," (15) "worms," (16) "Trojan horses," (17) "logic bombs," (18) "sniffers," (19) and "distributed denial of service attacks. …