Computer crimes.

• Author: Pelker, Catherine
• Position: I. Introduction through II. Issues C. Electronic Surveillance & the Electronic Communications Privacy Act, p. 793-821 - Thirtieth Annual Survey of White Collar Crime

1. INTRODUCTION A. Defining Computer Crime B. Types of Computer-Related Offenses 1. Object of Crime 2. Subject of Crime a. Spam b. Viruses c. Worms d. Trojan Horses e. Logic Bombs f. Sniffers g. Denial of Service Attacks h. Botnets i. Web Bots & Spiders j. Phishing Emails k. Rootkits 3. Instrument of Crime II. ISSUES A. Online Speech 1. Threat Speech 2. Child Pornography and Sexual Communication with Minors a. Communications Decency Act of 1996 b. Child Pornography Prevention Act of 1996 3. Spam a. CAN-SPAM Provisions b. Penalties c. Expansion to Social Media 4. Miscellaneous Exceptions 5. Anonymous Speech B. Fourth Amendment Search and Seizure 1. Scope and Execution of a Search 2. Third-Party Doctrine C. Electronic Surveillance & the Electronic Communications Privacy Act ("ECPA") 1. Categorization of Information a. Stored v. In-Transit b. Content vs. Non-Content 2. Components of ECPA a. Pen Register and Trap and Trace ("PR/TT") Statute b. Wiretap Act ("Title III") i. Provisions ii. Penalties c. Stored Communications Act ("SCA") i. Provisions ii. Penalties 3. Exceptions and Defenses a. Consent b. Rights and Property Exception c. Good Faith d. Computer Trespasser D. Hacking and The Computer Fraud and Abuse Act (CFAA) 1. CFAA Overview 2. Provisions 3. Penalties 4. Proposed Reform E. Copyright Infringement 1. Criminal Copyright Infringement in the Copyright Act a. Provisions b. Defenses c. Penalties 2. Digital Millennium Copyright Act a. Background b. Provisions c. Defenses d. Penalties 3. Stop Online Piracy Act/Future Reform F. Identity Theft 1. Provisions 2. Penalties G. Wire Fraud III. FEDERAL APPROACHES A. Federal Jurisdiction B. Federal Statutes C. Sentencing Guidelines IV. STATE APPROACHES A. State Jurisdiction B. Overview of State Criminal Codes C. Enforcement V. INTERNATIONAL CHALLENGES A. Issues B. Solutions 1. Public-Private Sector Partnerships 2. Treaties and Multilateral Efforts C. Regional Developments VI. ENFORCEMENT A. Challenges 1. Encryption 2. Jurisdiction 3. International Operations 4. Rules of Evidence B. Notable Initiatives I. INTRODUCTION

   This Article discusses federal, state, and international approaches to computer-related criminal law. Section I defines computer crimes; Section II covers the constitutional and jurisdictional issues concerning computer crimes; Section III describes the federal approaches used for prosecuting computer crime and analyzes enforcement strategies; Section IV examines state approaches to battling computer crimes; Section V discusses international approaches to addressing computer crimes; and Section VI deals with enforcement challenges and related initiatives.

   1. Defining Computer Crime

      The U.S. 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) This expansive definition is necessary to cover the increasingly diverse array of computer-related offenses. 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 exponential growth spawned a variety of new, technology-specific criminal behaviors that must also be included in the "computer crimes" category. (3) To combat these criminal behaviors, prosecutors rely on technology-specific legislation passed by Congress as well as applications of conventional law to activities in cyberspace. (4)

      It is difficult to calculate the damage caused by computer crime. Experts attribute this difficulty to: (1) the difficulty of adequately defining "computer crime;" (5) (2) victims' reluctance to report incidents for fear of losing customer confidence; (6) (3) the dual system of prosecution; (7) and (4) the lack of detection. (8) In 2014, cyber security leaders from PricewaterhouseCoopers, the U.S. Secret Service, CSO Magazine, and the CERT Division of Carnegie Mellon's Software Engineering Institute evaluated survey responses from more than 500 executives of US businesses, law enforcement services, and government agencies. (9) Their findings showed that seventy-seven percent of respondents detected a security incident in the past twelve months, and thirty-four percent said the number of security incidents increased over the previous year. (10)

   2. Types of Computer-Related Offenses

      1. Object of Crime

         The DOJ divides computer-related crimes into three categories according to the computer's role in the particular crime. (11) First, a computer may be the "object" of a crime. (12) This category primarily refers to theft of computer hardware or software. Under state law, computer hardware theft is generally prosecuted under theft or burglary statutes. (13) Under federal law, computer hardware theft may be prosecuted under 18 U.S.C. [section] 2314, which regulates the interstate transportation of stolen or fraudulently obtained goods. (14) Computer software theft is included in this category only if it is located on a tangible piece of hardware because the theft of intangible software is not prosecutable under 18 U.S.C. [section] 2314. (15)

      2. Subject of Crime

         Second, a computer may be the "subject" of a crime. (16) 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 includes spam, viruses, worms, Trojan horses, logic bombs, sniffers, distributed denial of service attacks, botnets, and unauthorized web bots or spiders. While these are tools used to commit crimes, oftentimes the mere use of one of these tools does not constitute a crime by itself. Each of these subcategories is defined and discussed below.

         In the past, malice or mischief rather than financial gain motivated most offenders in this category. (17) These types of crimes were frequently committed by juveniles, disgruntled employees, and professional hackers as a means of showing off their skills. (18) Disgruntled employees were once widely thought to pose the biggest threat to company computer systems. (19) The less visible threat from juvenile offenders led to unique challenges because sentencing courts had a difficult time finding appropriate penalties. (20) The disparity in visibility has decreased in recent years, however, as an increasingly diverse group of individuals motivated by financial gain and sovereign state interests have committed crimes against computers. (21)

         1. Spam

            Spam is unsolicited bulk commercial e-mail from a party with no preexisting business relationship. (22) In 2012, almost sixty-nine percent of all e-mails sent over the Internet was spam, (23) down from more than ninety-seven percent in 2009. (24) Spam emails commonly advertise various products and services (25) and are used by hackers as a way of distributing viruses, spyware, and other malicious software. (26)

         2. Viruses

            A virus is a program that modifies other computer programs. (27) It usually spreads from one host to another when a user transmits an infected file by e-mail, over the Internet, across a company's network, or by disk. (28) One of the most financially destructive computer viruses in history, the "Gozi" virus, infected at least one million computers, including 40,000 in the United States. (29) The virus, disguised to look like an innocent PDF document, secretly installed malicious software and began siphoning bank account numbers, usernames, and passwords, which the hackers used to transfer funds out of the victims' accounts. (30) Another large-scale virus, the "Melissa" virus, caused more than $80 million in damage. (31)

         3. Worms

            Worms are similar to viruses, (32) but use computer networks or the Internet to self-replicate and "send themselves" to other users, generally via e-mail. (33) By contrast, viruses require human action to spread from one computer to the next. (34) Worms' ability to self-propagate renders them particularly difficult to neutralize. (35)

         4. Trojan Horses

            Trojan horses, or simple "Trojans," are computer programs with legitimate functions that also contain hidden malicious code. (36) Like its namesake, a Trojan dupes a user into installing the seemingly innocent program on his or her computer system (37) and then activates the hidden code, which may release a virus or allow an unauthorized user access to the system. (38) Hackers use Trojans as the primary means to transmit viruses.

         5. Logic Bombs

            Logic bombs are programs that activate when a specific event occurs, such as the arrival of a particular date or time. (40) While they are often destructive, (41) logic bombs are commonly used as protective measures by software companies in order to disable programs upon detection of licensing agreement violations. (42)

         6. Sniffers

            Sniffers, also known as network analyzers, can read electronic data as it travels through a network. (43) Network administrators...