Carroll, Michael W., Schrader, Robert, American Criminal Law Review
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This article tracks developments in computer-related criminal law and legal literature, including an analysis of federal computer crime legislation and enforcement, and a discussion of state and international approaches.
A. Defining Computer Crime
The rapid development of computer technology 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 which do not fall within traditional criminal statutes. Moreover, computer crime is moving in new directions as child pornographers abuse the information highway to distribute their wares and rapists and pedophiles use the internet to meet and set up their victims.(2) 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 a knowledge of computer technology for their perpetration, investigation, or prosecution."(3)
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 billions of dollars.(4) While the exploits of youthful computer hackers have received the most press coverage, experts maintain that insider crimes committed by disgruntled or greedy employees have caused far more damage.(5)
Computer crime legislation attempts to respond both to the problems of old crimes committed with new technology and new types of crimes made possible by new technology. Some efforts to deter computer-related crime have closed loopholes in existing statutes; other statutes function as independent computer crime chapters.(6)
B. Types of Computer-Related Offenses
There is no "typical" computer-related crime and no typical motive for committing such crimes.(7) Computer criminals can be teenage hackers, disgruntled employees, mischievous technicians, or international terrorists.(8) However, it is possible to classify computer-related crimes by considering the role the computer plays in a particular crime.(9)
First, a computer may be the object"(10) of a crime, meaning the computer itself is targeted. Theft of computer processor time and computerized services are included in this category.
Second, the computer may be the "subject"(11) 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.(12) The use of "viruses"(13) and "logic bombs"(14) fit into this category. These crimes present novel legal problems because of the intangible nature of the electronic information which is the object of the crime.(15)
Third, a computer may be an "instrument"(16) used as a means of committing traditional crimes such as theft, fraud, embezzlement, or trespass,(17) albeit in a more complex manner.(18) For example, a computer might be used to scan telephone codes automatically in order to make unauthorized use of a telephone system.(19)
II. FEDERAL APPROACHES
A. Federal Criminal Code
Computer-related crimes have been treated as distinct federal offenses since 1984, when Congress passed the Counterfeit Access Device and Computer Fraud and Abuse Law of 1984.(20) Since the 1984 Act was passed, the volume of such legislation has expanded greatly to meet the challenge of more types of computer-related crimes. However, federal computer crime legislation has been inexplicably unresponsive to the problems of fighting computer crime.(21) It began as a piecemeal effort to solve a problem with unknown dimensions and importance.(22) As more data about computer crimes has become available, the law has become more precise.(23) Yet the most recent attempt to address the problem of computer-related crimes, the 1994 Act, may still contain significant gaps. …