The Inadequacies Of Computer Law Criminology Essay

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Around 1990, Microsoft released Windows 3.0, the first graphical user interface (GUI) that the public embraced. This was followed in 1992 with Windows 3.1 and 3.11, in 1994 with Windows NT, and in 1995 with Windows 95.Windows 98 and Windows 2000 followed in later years. The latest versions, Windows XP and Windows Vista, are highly popular and widely used. During these advancements, other operating systems, most notably Macintosh and Linux, also developed GUI-based operating systems that are popular with the public and often encountered in the field. Why is this important? Older computers were difficult to learn and - for criminal elements - difficult to exploit for criminal purposes. Think about it: if it involves significant work, it is less likely to be popular with most of your street criminals. If it is easy, the computer and operating system offer a quicker learning curve and more opportunities for criminal exploitation. This paper examines previous research on computer crime and how current computer law is inadequate to handle such crimes.

What is Computer Crime?

The sudden rise in computer crime has been an ongoing issue of concern in our society. According to the Federal Bureau of Investigation (FBI), nine out of ten U.S. companies experienced computer security incidents in 2005 which led to a loss of $67.2 billion dollars. A survey conducted by IBM found that U.S. businesses worry more about computer crimes than about physical crimes. Computer crimes are defined as criminal activities in which computers or computer networks are the principal means of committing an offense (Kshetri, 2009). They are frequently grouped into three categories. The first are those in which the computer comprises the "object" of a crime and in which the perpetrator targets the computer itself. This includes theft of computer processor time and computerized services. The second category involves those in which the computer forms the "subject" of a crime, either as the physical site of the offense or as the source of some form of loss or damage. This category includes viruses and trojans. Finally, the third category includes those in which the computer serves as the "instrument" used to commit traditional crimes in cyberspace. This encompasses offenses similar to cyber-fraud, cyber trespassing, etc. (Sloan, 1999-2003)

Generally, cyber fraud involves promoting falsehoods in order to obtain something of value or benefit. Although it can be said to be a form of theft, fraud differs from theft in that in many cases, the victim knowingly and voluntarily gives the money or property to the criminal-but would not have done so if the criminal hadn't made a misrepresentation of some kind. For example, a con artist sends a mass e-mail asking random people to send money to help a poor child whose parents were killed in an auto accident, or promising that if you "invest" a small amount of money (by sending it to the con artist) and forward the same message to 10 friends, you'll be sent thousands of times your "investment" within 30 days.

In cyber trespass offenses, the criminal accesses a computer's or network's resources without authorization but does not misuse or damage the data there. A common example is the teenage hacker who breaks into networks just "because he (or she) can" - to hone hacking skills, to prove him-or herself to peers, or because it's a personal challenges. Cyber trespassers enjoy "snooping," reading personal e-mail and documents and noting what programs someone has on their system, what web sites have been visited, and so forth, but they don't do anything with the information they find (Shinder, 2002).

According to Gilman (2009), millions of people are participating in a globalised hacker culture that has evolved from a narrow subculture of alphanerds into a highly collaborative "industry," increasingly populated by seasoned professionals, many of whom are not even technologists. In addition, cyber security professionals and the US Federal Bureau of Investigation estimate that the global hacker criminal economy is currently worth at least $10 billion annually, which means that hackers are increasingly disciplined and profit-motivated (Gilman, 2009).

How to Fight Computer Crime

In order to fight computer crime, we have to first understand how it works. One of the first steps is to define what computer crime is, both generally and specifically. Once a clear definition is established, then it is time to collect statistical data in order to perform an analysis on certain patterns and trends. This step is important because it is the foundation for finding ways to prevent computer crimes and enforce new policies against it (Shinder, 2002).

One of the major problems with writing, enforcing, prosecuting, and interpreting computer crime law is the lack of technical knowledge on the part of people charge with these duties (Shinder, 2002). Those who have been following the computer crime have openly griped about the lack of success that law enforcement officials have had in bringing the bad guys to justice (Hines, 2008). Police investigators are becoming more technically savvy, but in many small jurisdictions, no one in the department knows how to recover critical evidence (Shinder, 2002). The officials themselves have long blamed a lack of dedicated resources and the need to more aggressively pursue criminals in the offline world as prime catalysts in their seeming inability to get more cyber criminals taken offline, collared, and thrown in jail (Hines, 2008). For example, the some officials might say that the budget might not allow their department to bring in high-paid consultants or send a disk to a high-priced data recovery service (Shinder, 2002). Within the hierarchy of the judicial system, the judge presiding over the case would need some form of technical background in order to handle such a topic. They are the people that interpret the laws, but they often do not have the technical expertise to do so and with the language of the crime laws being so vague, it makes it more difficult.

Lack of technical understanding also comes into play when judges hand down sentences. In an attempt to "make the punishment fit the crime," in many jurisdictions, judges exercise creativity in dealing with computer-related crimes. Rather than assigning the penalties normally associated with criminal conduct-fines and/or imprisonment-judges are imposing sentences such as probation with "no use of computers or networks" for a specific period of time (Shinder, 2002).

Why Computer Crime is Hard to Prove in the Court of Law

The Computer Fraud and Abuse act of 1986(CFAA) was intended to be the chief weapon for a federal assault on computer crimes. The statute criminalizes six activities: (1) the unauthorized access of a computer to obtain information of national secrecy with an intent to injure the United States; (2) the unauthorized access of a computer to obtain protected financial information;(3)the unauthorized access of a computer intended for the exclusive use of the federal government; (4) the unauthorized interstate access of a computer system with an intent to defraud; (5) the unauthorized interstate access of computer systems that results in at least $1000 aggregate damage; and (6) the fraudulent trafficking in computer passwords affecting interstate commerce. However, CFAA is rarely used and has received little attention from Federal prosecutors. Since its enactment, there has been one successful prosecution under CFAA. In 1991, the Second Circuit upheld the conviction of a college graduate student who released a virus on the internet causing several governmental computer systems to crash. The court refrained from a broad interpretation of CFAA, and instead limited their scope to discussing the intent requirement in the statute. Although the Circuit Court upheld the conviction, the court's narrow construction has limited CFAA for future prosecution (Sloan, 1999-2003).

Some academics argue that state law is currently adequate to handle computer crime and that further federal legislation is unnecessary. According to Dierks (1993), states do not have to enact specific computer crime law - defining property rights and other computer lingo may be enough to use existing statutes against theft, destruction of property, and trespass for prosecution. However, as the Internet continues to expand and crimes continue to become more interstate, state legislation will be less effective. Determining proper venue for adjudicating the crime is bound to become an issue. State courts may also be ineffective. Computer technology is often difficult to understand and it is important to consider the ramifications for setting precedent in computer law (Sloan, 1999-2003).

Enacted by Congress in the wake of the terrorist attacks of September 11, 2001, on New York and Washington, D.C., the USA PATRIOT Act is one of the most recent laws impacting cyber crime. The statute was enacted for the express purpose of strengthening the investigation powers and prosecutorial powers involved in the investigation of terrorist acts. The act, however, has not been met without criticism, as the Electronic Freedom Foundation and the organization TRUTHOUT have published a series of sharp criticisms on the act.

Title 18 of the U.S. Code, in Chapter 47, Section 1030, defines a number of fraudulent and related activities that can be prosecuted under federal law in connection with computers. Most pertain to crimes involving data that is protected under federal law (such as national security information), involving government agencies, involving the banking/financial system, or involving intrastate or international commerce or "protected" computers. Defining and prosecuting crimes that don't fall into these categories usually is the province of each state. Most U.S. states have laws pertaining to computer crime. These statutes are generally enforced by state and local police and might contain their own definitions of terms. For example, the Texas Penal Code's Computer Crimes section defines only one offense, Breach of Computer Security (Texas Penal Code Section 33.02), defined as "knowingly accessing a computer, computer network, or computer system without the effective consent of the owner."The classification and penalty grade of the offense is increased according to the dollar amount of loss to the system owner or benefit to the offender. California Penal Code (Section 502), on the other hand, defines a list of eight acts that constitute computer crime, including altering, damaging, deleting, or otherwise using computer data to execute a scheme to defraud; deceiving, extorting, or wrongfully controlling or obtaining money, property, or data; using computer services without permission; disrupting computer services; assisting another in unlawfully accessing a computer; or introducing contaminants (such as viruses) into a system or network (Moore, 2005).

Over ten years ago, computer crime was just beginning to account for a larger number or overall crimes. The dangers of such computer crimes were not widely known, there was expressed a lack of concern for computer crime.

Donn B. Parker, one of the foremost computer security advisers in the country, once wrote that he did not believe viruses and other computer hacking tricks would amount to much. In fact, he criticized agencies for their efforts to increase awareness of the technology crime problem. It was Parker's opinion that the harmful effects that could potentially be caused by future computer criminals were not as serious as sources initially indicated. He believed the problem did not justify the extensive, and sometimes expensive, research that was being put into preparations for future computer crimes. This is sad proof that technology crimes were not taken seriously when it was still possible to form adequate protections, protections that could have potentially limited several of the more damaging attacks that have occurred in recent years. Thankfully, there are few today who feel this way, including Parker (Moore, 2005).

Purpose of Research Study

This information has emphasized the need to express more concern in handling cybercrimes within the judicial system. Because the internet is such a big part of our lives, it was important to examine a few types of cyber crime that could be committed and how they would be handled in the courts. One important fact that has been made clear is that computer crimes mirror crimes that happen in the physical world. Just as there are human perpetrators and victims in the physical world, they are out there in the digital world in the form of pedophiles and extortionists. While criminals feel a sense of safety on the internet, they are being both observable and vulnerable. By observing the online activities of offenders and other criminals, we can learn how to properly prosecute these crimes and bring them to justice.

Based on the research, it is clear to see that law enforcement agencies are inexperienced in handling cyber crimes. Due to the fact that some agencies lack sufficient resources to fight cybercrime, fighting cyber crime may get a lower priority. According to Kshetri (2009), cyber crimes are increasingly sophisticated and new forms and methods are developing rapidly. Digital criminals are becoming too difficult to catch and prosecute than conventional criminals. In fact, collection and retention of evidence has been a critical challenge facing law enforcement agencies. Estimates suggest that the U.S. Department of Justice declines to prosecute up to 78% of cases mainly because of a lack of evidence (Kshetri, 2009). As stated earlier, the rapid development of cyber crime has presented several challenges within the court system. In many cases, it's difficult to find an attorney that can effectively explain a cyber crime to a judge. What does this all mean? It means that legislators, politicians, criminal justice professionals, and the community should invest time in education and awareness programs on how to fight cyber crime. Even potential cyber criminals, with the right kind of education, might be diverted from such behavior. With the beginning of new technologies such as artificial intelligence, computer crime legislation is bound to encounter plenty of roadblocks. If current law is unsettled, future law will be disastrous.