Computer Crimes

By Wallace, Ryan P.; Lusthaus, Adam M. et al. | American Criminal Law Review, Spring 2005 | Go to article overview

Computer Crimes


Wallace, Ryan P., Lusthaus, Adam M., Kim, Jong Hwan, 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. Controlling the Assault of Non-Solicited Pornography
            and Marketing Act of 2003
         b. 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

I. INTRODUCTION

This Article discusses federal, state, and international developments in computer-related criminal law. This Section defines computer crimes. Section II describes the federal statutes used for prosecuting computer crime, analyzes enforcement strategies, and discusses constitutional and statutory issues involving computer crime. Section III examines state approaches to battling computer crime and the resulting federalism issues. Lastly, Section IV addresses international approaches to regulating the Internet as well as international cooperation in computer crime enforcement.

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 "spam," (15) "viruses," (16) "worms," (17) "Trojan horses," (18) "logic bombs," (19) "sniffers," (20) and "distributed denial of service attacks.

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