Bakewell, Eric J., Koldaro, Michelle, Tjia, Jennifer M., American Criminal Law Review
This Article discusses developments in computer-related criminal law and legal literature. As crimes committed with computers often do not respect state or national boundaries, it is important to examine federal, state, and international approaches to computer crime legislation and enforcement. Section I defines computer crime, and explores different forms of computer crimes. Section II describes the federal statutes used for prosecuting computer crimes and analyzes defenses, sentencing, and enforcement strategies. 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
The rapid emergence of computer technologies and the Internet's(1) exponential expansion have spawned a variety of new criminal behaviors.(2) As a result, there has been a dramatic increase in specialized legislation to combat these new criminal behaviors.(3) While the term "computer crime" includes traditional crimes committed with a computer,(4) it also includes novel, technology-specific offenses that arguably are not analogous to any non-computer crimes.(5) The diversity of computer-related offenses, however, renders any narrow definition untenable. The 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."(6)
Accurate statistics have proved elusive(7) because of the difficulty in adequately defining computer crimes.(8) The statistics are also untrustworthy due to victims' failures to report incidents because of the fear of losing customer confidence(9) and the lack of detection.(10) The aggregate annual losses to businesses and governments, however, are estimated to be in the billions of dollars.(11)
B. Types of Computer-Related Offenses
There is no standard computer-related crime and no typical motive for committing such crimes. Common motives include exhibiting technical expertise, highlighting weaknesses in computer security systems, punishment or retaliation; computer voyeurism, asserting a belief in open access to computer systems, or sabotage.(12) Computer criminals can be youthful hackers,(13) disgruntled employees,(14) company insiders,(15) and/or international terrorists and spies.(16) Computer-related crimes are classified according to the computer's role in the particular crime because of the vast variety of computer-related crimes and motives.(17)
First, a computer may be the "object" of a crime: the offender targets the computer itself. Second, a computer may be the "subject" of a crime: a computer is the physical site of the crime, or the source of, or reason for, unique forms of asset loss. This includes the use of "viruses,"(18) "worms,"(19) "Trojan horses,"(20) "logic bombs,"(21) and "sniffers."(22) Third, a computer may be an "instrument" used to commit traditional crimes in a more complex manner.(23) For example, a computer might be used to collect credit card information to make fraudulent purchases.(24)
II. FEDERAL APPROACHES
This Section explores the major federal statutes, enforcement strategies and constitutional issues regarding computer related crimes. Part A discusses the National Information Infrastructure Protection Act of 1996 ("NIIPA" or "1996 Act").(25) In addition, Part A reviews several other key federal statutes in the prosecution of computer crimes. Part B describes relevant enforcement efforts, and Part C examines First and Fourth Amendment issues.
Although the focus of this article is the federal government's approach to prosecuting criminal computer offenses, litigation under recent amendments(26) has centered primarily on civil remedies. …