Viruses and the Law: Why the Law Is Ineffective
Montana, John C., Information Management
Increasingly, the Internet and electronic document interchange are required business tools. Where even a few years ago, Web sites and e-mail were novelties, and e-commerce virtually non-existent, these are now commonplace. Businesses of any size have Web sites, e-mail is ubiquitous, and e-commerce is booming.
Unfortunately, the increase in Internet usage and dependence has been accompanied by a commensurate increase in illegal and improper activities. Some of these phenomena are merely electronic versions of older activities -- stock kiting, pyramid schemes, and the like, while others are uniquely Internet-based -- viruses, worms, and other devices designed to disrupt Internet service or damage computers.
These objects' creators are somewhat unique in that there is apparently no economic motive for their actions. They are vandals, pure and simple, and their vandalism is enormously costly to the world economy. It has been estimated that viruses cost the U.S. economy several billion dollars a year (Violino 1996).
What is a Virus?
At its simplest, a virus is a small piece of self-replicating computer code. It may or may not contain instructions that cause an infected computer to erase directories, reformat drives, or send infected e-mails to other computers. Many other programs within a computer are capable of sending these commands as well. The only difference in the case of a computer virus is that the commands are sequenced in such a way as to do damage.
In many countries, the nature of the legal system makes criminalizing of viruses a relatively simple matter. China, for example, has laws in place forbidding even discussion of computer viruses (Grable 1996). In the United States, however, things are not so simple; the very nature of viruses puts them in a category of objects that are difficult to regulate.
Any computer code is intellectual output and property with certain legal protections just the same as books or sound recordings. In the United States, such intellectual properties are legally considered a kind of speech and are entitled to legal protection under the Constitution's First Amendment.
Although there are limits on the protections afforded under the First Amendment, (e.g., you cannot shout "fire" in a crowded theater and claim First Amendment protection), generally, the government cannot prevent the creation or free dissemination of "speech." The government may impose "reasonable" time, place, and manner limitations on speech, but these limitations can only be put in place in response to an immediate need to protect the public welfare in a particular case. For example, people wishing to hold a public demonstration may have to get a permit or restrict their protest to a particular area.
When it comes to the mere creation of words or ideas, however, time, place, and manner restrictions are very difficult to enact in a manner that will withstand scrutiny by the courts. Over the years, a great many potentially dangerous intellectual products have appeared in the United States -- books containing instructions on how to make bombs, magazine articles on assassination, books on how to make drugs, and many others. On a number of occasions, either federal or state government has attempted to suppress them on the grounds that they would encourage illegal or dangerous activity. The courts have routinely struck down such laws as restraints on free speech.
A similar analysis has been applied to computer code. The U.S. government attempted to restrict dissemination of encryption software by passing a law forbidding its posting on Internet sites, citing law enforcement and national security interests as the justification. A court determined that the code was speech and that the government could not so restrict its dissemination.(1) As a result, it is not really possible, at least in the United States, to make mere development or possession of virus code illegal. …