Jacobson, Heather, Green, Rebecca, 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 sets out the major categories 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 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." (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 Internet's (3) exponential expansion 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 the difficulty in adequately defining computer crimes, (6) to victims' reluctance to report incidents for fear of losing customer confidence (7) and to the lack of detection. (8) However, estimates put the yearly loss to the United States in the billions of dollars. (9)
B. Types of Computer-Related Offenses
The DOJ divides computer-related crimes into three categories according to the computer's role in the particular crime. (10) First, a computer may be the "object" of a crime. (11) This category primarily refers to theft of computer hardware or software. (12)
Second, a computer may be the "subject" of a crime. (13) 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 novel crimes that have arisen out of the technology explosion of the last several decades, including the use of "viruses," (14) "worms," (15) "Trojan horses," (16) "logic bombs," (17) "sniffers," (18) and "distributed denial of service attacks." (19) Many offenders in this category are motivated by malice or mischief rather than financial gain; (20) this type of crime is particularly popular among juveniles, (21) disgruntled employees (22) and professional hackers who want to show off their skills. (23)
Third, a computer may be an "instrument" used to commit traditional crimes in a more complex manner. (24) These traditional crimes include identity theft, (25) child pornography, (26) copyright infringement, (27) and mail and wire fraud. (28)
II. FEDERAL APPROACHES
This Section explores the major federal statutes, enforcement strategies and constitutional issues regarding computer related crimes. Part A discusses key federal statutes in the prosecution of computer crimes, the most significant of which is the National Information Infrastructure Protection Act of 1996. (29) 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 (30) has centered primarily on civil remedies. …