COMPUTER CRIMES
Copyright (c) 2000 American
Criminal Law Review
American Criminal Law Review
Spring, 2000
37 Am. Crim. L. Rev. 207
by LAURA J. NICHOLSON, TOM F. SHEBAR and
MEREDITH R. WEINBERG
The Department of Justice
("DOJ") broadly defines
computer crimes as "any
violations of criminal law that
involve a knowledge of computer
technology for their perpetration,
investigation, or prosecution."
Motives
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Show off their skill
Highlight the weakness of security
Promote Open Access to Computing
Revenge or punishment
Thrill of doing so
Who Commits Computer Crime
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Youthful Hackers
Terrorists
Disgruntled Employees or Customers
Spies
Classification by role of Computer in
the Crime
• Object of the Crime - theft of data or
computing resources
• Subject - the physical location of the crime
through use of worms, sniffers, viruses
• Instrument Used in a crime - To gather
credit card data used in a fraudulent
purchase
Federal Approach
• Has a comprehensive law that addresses
computer crime as opposed to adding
sections to all other types of criminal laws.
• This has been through a series of laws that
have been refined to address short comings
and successful defenses of cases tried under
the laws.
National Information Infrastructure
Protection Act of 1996
• Subsection 1030(a)(1) - crime to access data
without access or in excess of access and to
then transmit classified data.
• 1030(a)(2) - prohibits gaining data without
access of in excess of access rights from
government, financial or computers used
interstate commerce
•1030(a)(3) -prohibits government or agency
non public computers without authorization and
this must effect government usage.
•1030(a)(4) - access without authorization with
the intent to defraud and obtain something of
value worth $5000
1030(a)(5) - knowingly transmitting a file,
program or command that causes damage to a
protected computer system
•1030(a)(6) - illegal to knowingly transmit
passwords that would allow access to government
computers or computers used in interstate or
international commerce.
•1030(a)(7) - illegal to make a threat to cause
damage to a government computer or a computer
used in interstate or international commerce.
Eliminated Common Defenses
• Included most computers by adding
computers used in interstate commerce
• By removing “adversely” from section (3)
prevents the benign hacking defense
• 1886 act required damage to be from an
outsider so an insider could not be
prosecuted for damaging a system
• (7) made it illegal to threaten to crash a
system or to encrypt files and ask for a
payment to not crash or to provide the key
to the file.
Other Enhancements of 1996 Act
• Crime to Attempt to access not just
successfully gaining access
• Changes misdemeanor offences to felonies
if done for financial gain of over $5000
• Provides incentive to report computer
crimes through allowing civil penalties for
intentional actions
Sentencing Changes
• Recidivists - now a repeat offender for
violating any section of the act.
• Special Skill sentence enhancement - not
found to require formal computer training
just more knowledge than average person
• but sentences are still less than the
guidelines and have not been adjusted up
Other Statutes Used to Prosecute
• Copy Right Laws - $3.2 billion ‘98
• National Stolen Property Act - fraudulent
transfers of funds
• Mail and Wire Fraud - add to almost any
computer crime
• Electronic Communication Privacy Act - to
intercept electronic or wireless
communication or obtain, alter or prevent
access to electronic storage.
More Statues Used
• Communications Decency Act of 1996
• Child Online Protection Act - but both have
first amendment issues
• Child Pornography Prevention Act of 1996 illegal to have, transmit computer generated
or modified images depicting child porn
Enforcement - still infrequent
• Companies might prefer to handle this
privately to avoid publicity.
• DOJ - statistics are not consistent in this
area
• Ambiguities in prior laws hampered efforts
• Lack of knowledge in law enforcement and
prosecutors might contribute
FBI efforts
• Innocent Images probe • 56 field offices have computer crime teams
• Infrastructure Protection and Computer
Intrusion Squad out of Washington
Constitutional Issues
Searches of Computer Records
• Search warrants listing business records
including computer files have withstood
scrutiny
• Staleness - if typically don’t delete then age
of information leading to warrant less
important
State Laws
• Every State has enacted some computer
related law.
• Half are modeled on the Federal Computer
Systems Protection Act
• The other state have enacted comprehensive
laws
Personam Jurisdiction
• Does the court have the authority to decide
the case?
• Traditional approach - interactivity.
• Does a web site just present static
information or can a visitor search for a
product and then enter into a purchase
agreement?
• Jurisdiction can be location of a computer
hacked into or where a defrauded customer
sent a transaction from.
International Approaches
• The ability of criminals to act throughout
the world and the possibility of computer
terrorism calls for international actions to
address computer crime.
• Definition of a computer crime and actions
to make it illegal both locally and
internationally is a continued effort.
4 areas commonly addressed
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Privacy
Economic Crimes
Intellectual Property
Procedure to aid in prosecuting computer
crime.
• Nations are following the model of the
Computer Fraud and Abuse Act of 1996
Internet Related Issues
• Countries have laws other countries do not
and the internet can present information
from one country that is illegal in another.
• German bans on denying the Holocaust.
International Convergence
• Countries are defining specific laws related
to computer crimes which is useful than
adding language to address computerization
of traditional crimes.
• Several Countries are working together to
address the issues of international computer
crime issues like evidence rules
International treaty or convention
would need to address:
• Extradition
• cooperation in the retention of witnesses
and evidence
• recognition of foreign judgements
• cooperation in investigation
Encryption Control
• US is almost alone in its attempts to force
encryption key escrow.
MUDDY RULES FOR
CYBERSPACE
Copyright (c) 1999 Yeshiva University
Cardozo Law Review
October, 1999
21 Cardozo L. Rev. 121
• by Dan L. Burk
Intellectual Property Law in Cyberspace
There have been recent calls for clear property
rights for digital media.
These calls ignore the efficiency of unclear or
“Muddy” entitlement approach.
Holders of copyrights have been
pushing for the application of these
rights to digital media based comparison
to real property laws. There has been
intellectual support for “Strong” property
rights of copyrighted material in digital
format. The arguments have not
addressed the benefits of unclear
entitlements in real property.
• Property Rules - the right to allow or forbid
others from using your property.
Vrs
• Liability Rules - the right to compensation
for the use of your property.
Who decides - owner or user.
Divided Rules
• can be clear and divided - licensing fee for
selling records
• divided and Muddy - a property owner can
make free use of adjacent land necessary for
access to make effective use of the land.
• Divided Rights - some rights are shared or
ceded to other parties
• Complete Entitlement - all entitlements are
held by a single party.
• Clear - the outcome of action to resolve a
dispute is predictable.
• Muddy - the outcome of a dispute in not
predictable
• This is based on legal rules that allow a
decision maker some flexibility in deciding
a case involving competing factors.
Strong Property Rights
• Real Property Law grants strong control over
rights to conserve the value of a finite resource.
• But does this apply to intellectual property which
is not finite but can be copied?
• The argument for this is base on public good - can
be used by many simultaneously without
interfering with each others use. If a payment can
not be secured for the creator there will be no
incentive to create things for the public good.
But as the price increases some people will not
buy it and thus there is a loss of Social Welfare
from the property.
Buyers Preference
• To counter the rebuttal of lost social welfare
another argument is made. That choices
people make serve as an indicator for the
types of goods desired and thus help
indicate to creators what to create.
• However pricing above the nominal cost
will limit sales and skew the results as to
desire for a product due to incorrect
demand/ pricing data.
Sell Exclusive Rights to Highest Bidder
• This argument states that in order to induce
buyers to buy they must be given exclusive
rights to the property to protect against rival
development. Without this there will be not
incentive to create.
• But this again results in lost Social Welfare
of development by rival parties.
• This is where muddy rules come in related
to Copyright law.
Copyright covers Original Content
• Cherry Tree on property line
– Legal boarders designated by copyright are not
all that clear cut.
– court decisions on originality sometimes seem
like baking contest versus deed
– if a real property case was thus decided we
would be more upset that people seem to be in
copyright cases equivalently ruled on.
– Boundaries of land can be as fuzzy as
originality, loud noise or smoke.
• It might be in societies interest to give ownership
of the tree to whoever will best serve society - the
baker of award winning pies.
• However when a clear right is established a high
transaction cost can prevent development of the
right by an interested party against the best
interests of the public.
• Muddy rights can resolve this by bringing such
disputes to a third party for to decide can aid in
negotiations because the outcome is unclear.
• Nuisance judge can consider social value
not just clear property right.
• Uncertainty makes parties negotiate and
prevents one party from pushing to
litigation less the case be decided against
them and all rights given to the other party.
• Cave and enterance
Copyright law allows for
unauthorized use for public good
• Such taking of rights under fair use are
contemplated where the transaction costs
exceed or would frustrate a public value.
• The uncertainty drives parties to court or
more often into a less costly agreement.
Originality
• Deciding originality through use of filters or
abstraction can introduce similar
uncertainties.
Shared Property Rights
• Can function like muddy property rights
such that they can be reasonable in cases
with low transaction costs as well as with
the high transaction costs already described.
• When negotiating a complete sell out and
not just rights either party can be the buyer
or the seller. That reduces the likeliness of
stratigic positioning. The whole property is
only worth x so the value of your property
is x - y because the other party might turn
around and decided to buy at your price.
Blocking Patents
• Patent and and a patent on an improvement
on the product. Neither can be used with
out infringing on the other patent. It is good
to allow for improvement of products so
patents should not reduce the incentive for
doing so. The stake each party holds will
lead to negotiations rather than the loss
from not developing the product.
Muddy Entitlement might work like
blocking patents
• With the risk of filtration, abstraction and
fair use create uncertainty that can lead to
negotiation rather than seeking an
enforcement suit.
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Democratic Spillover
• There is a value in open access to informational
works.
• Muddy equivalent - lattitude to consider public
good when the social value is high and the
transaction costs are prohibitive. Small taking of
property rights allowed where the value gained is
small and the cost of enforcement makes taking
action unlikely. Where the value is higher the
muddied entitlement will be decided by a third
party who can consider the social value
Transaction Costs
• Defined boarders allow strong property
rights but defined boarders are not as easy
as finding the beginning and ending of a
file.
– Recoding or intertext what the reader brings to
a work.
Search and Bargaining Costs
• While search engines help the cost of
finding what you are looking for can be
high. Library of Congress dumped on the
floor, trace an email joke back to origin.
• Technology might offer friction free low
transaction costs but they might not be in
the interest of sellers/consumers. Each side
might try to maximize their share of the
surplus in a transaction. Business could
gain the upper hand based on data about
consumer
• Multimedia brings together information
from many sources and this could lead to
holdouts. Railroad. Want all the value of
the whole product not just the share related
to their piece. Eminent Domain.
• Fair Use is like eminent domain for
copyrighted material if
Jurisdictional Issues
• What court and what rules apply if a dispute
arises? Buyers, sellers any that the
transmission passed through?
• What national rights are applicable when a
work is created?
Rent Seeking
• Waste of funds spent to influence legislation
is balanced by the risk that market will
make other jurisdictions more attractive.
• International approach with strong rights
could result in rent seeking without the
control of another jurisdiction to go to.
Informal Solutions/Self Help
• Tying - easily copied product to a less easily
copied component. Software to upgrades or
support.
• Published work to pocket updates
• Browsers to other products once market has
been identified. Netscape
First to Market
• Pricing a product to make profit before a
copy can be brought to market and just plan
to have new innovation to continue to make
profit.
• Sponsors - advertisers pay for the costs of
television materials. Already on the
internet.
• Use Tax on Digital Recorders to
compensate for the resulting loss in copied
materials.
Rights Management Systems
• Books sold at an average price to users who will
value the work to differing degrees.
• Technology can allow a user who reads a whole to
pay for all of it while one who can’t finish the first
chapter to pay for the part used. This leads to a
call for strong rights.
• But Originality, public domain and the public
good might warrant the continuation of muddied
entitlements.
• But access is required and technology could block
and lead to a wasteful security/hacking use of
resources.
Trade Secrets
• Licensing costs have to be lower than the
cost of independent development or reverse
engineering a product
• The ability to prevent unauthorized access
should not be allowed to change the current
incentive structure.
Collective Right Organizations
• Have the right to collect royalty for use of
property under their domain
• music
• patent pools
• screen actors guild
• groundwater management basins
• Can all be seen as having benefits of Muddy
entitlements
Muddy Entitlement works and
there is a continued role for it in
dealing with digital works