Computer Crime

Legislation at both the federal and state level provide for the prosecution of computer crime. Although computer crimes can be prosecuted using federal statutes that are exclusively focused on computer crime, many prosecutors do not use these specific computer-related statutes. Instead, prosecutors often continue to use traditional criminal law statutes in computer crime prosecutions. Although computer crime laws develop to accommodate new forms of criminal activity, the law has moved relatively slowly in comparison to the rapid development of computer technology.

Federal statutes. At the forefront of federal computer-related offenses is the computer fraud statute, 18 U.S.C. § 1030. Initially passed in 1984 (Counterfeit Access Device and Computer Fraud and Abuse Act of 1984), the statute has been amended on several occasions, including a significant expansion of the statute in the Computer Fraud and Abuse Act of 1986.

This computer fraud statute prohibits seven different types of computer-related activity. These can basically be described as: (1) electronic espionage; (2) unauthorized access to financial institution information, information from a United States department or agency, or information from any protected computer involved in interstate or foreign commerce; (3) intentionally browsing in a government computer or affecting a government computer; (4) using the computer for schemes of fraud or theft; (5) transmitting programs that cause damage or accessing a protecting computer and causing damage; (6) interstate trafficking of passwords; and (7) extortion threats to a protected computer. The statute includes both felony and misdemeanor provisions with different penalties depending on the specific conduct. Additionally, 18 U.S.C. § 1030(g) includes a civil remedy for those damaged through violations of the statute.

The Electronic Communications Privacy Act (ECPA) (18 U.S.C. §§ 2510 et. seq., 2701–2710) was initially enacted to criminalize eavesdropping. In 1986 Congress updated this privacy legislation so that it was not limited to conduct involving traditional wires and electronic communications. The EPCA now covers all forms of digital communications.

By providing privacy rights to Internet communications, the EPCA equips federal prosecutors with a tool for curbing criminal activity involving the Internet. This act allows prosecutors to proceed with criminal charges when a defendant compromises a victim's privacy rights by improperly accessing the victim's computer system. The ECPA details the statutory exceptions that are provided to system operators and to law enforcement. For example, where service providers can monitor traffic data on the system, they are precluded from reading material that is being transmitted over the Internet.

Another federal statute that permits prosecution of computer-related activity is the Economic Espionage Act (EEA). Passed by Congress in 1996, this act focuses on the protection of trade secrets. Trade secrets, a term defined in the statute, include an array of different types of information that have an actual or potential value and that an owner has "taken reasonable measures" to keep secret. The EEA offers trade secret protection to both businesses and the government. The significance of information to society, and the problems that are attached to protecting this information, make the EEA an important step in how the law can provide protection from computer crime.

The EEA includes statutes pertaining to both domestic and foreign trade secrets. The statute 18 U.S.C. § 1831 prohibits the misappropriation of trade secrets that benefit any foreign government. In contrast, 18 U.S.C. § 1832 prohibits the theft of domestic trade secrets. The EEA provides for extraterritorial application, allowing U.S. prosecutors to pursue cases that meet criteria set forth in the statute, despite the fact that the criminal activity may have occurred outside the United States. The EEA also permits forfeiture, such as forfeiture of computer equipment, as a possible penalty. In an effort to encourage businesses that are victims of a theft of trade secrets to cooperate in pursuing prosecution, the EEA attempts to preserve the confidentiality of the trade secret during the criminal prosecution.

The availability and dissemination of pornography is exacerbated by technology. The accessibility of pornography via the Internet is a concern of the Communications Decency Act of 1996 and the Child Pornography Prevention Act of 1996. The child pornography and luring statutes specifically include activities related to use of a computer (18 U.S.C. § 2251 et. seq., 18 U.S.C. § 2422(b)). These statutes and others have been added to the criminal code to provide additional protections to children. When reviewing these statutes, courts have the difficult task of determining the appropriate line between individual liberties, such as privacy and free speech, and criminal conduct.

Many federal statutes prohibit conduct in "technology-neutral" ways. These statutes permit prosecutors to proceed with the prosecution of criminal activity involving a computer without having to wait for lawmakers to create a specific computer-related crime. For example, the sale of drugs without a prescription can be prosecuted using a traditional drug statute, even though the activity occurs on the Internet (21 U.S.C. § 353(b)). Similarly, statutes prohibiting the sale, manufacture, or distribution of controlled substances present conduct in a "technology-neutral" way, permitting the use of existing statutes for the prosecution of these crimes (21 U.S.C. §§ 822, 829, 841). Improper gun sales on the Internet, likewise, may be prosecuted using existing gun commerce statutes (18 U.S.C. § 922).

Statutes that include the term "wires" as a means of committing the conduct may allow prosecutors to apply the statute to Internetrelated crimes. For example, a statute that includes the language "wire communication facility" to describe the means by which the criminal conduct occurs, is broad enough to encompass Internet-related crimes. This language is found, for example, in a sports gambling statute (18 U.S.C. § 1081). Thus, businesses conducting sports gambling over the Internet can be prosecuted using the traditional federal gambling laws (18 U.S.C. § 1084).

In the federal arena, one commonly finds computer-related conduct charged using existing statutes that are not uniquely worded to provide for prosecutions involving activity related to computers. Despite the absence of specific reference to computers, individuals engaged in computer-related activity are charged with crimes such as securities fraud (15 U.S.C. § 77q), money laundering (18 U.S.C. § 1956), fraud and related activity in connection with access devices (18 U.S.C. § 1029), and conspiracy (18 U.S.C. § 371).

Three statutes that do explicitly refer to computers that prosecutors continue to use in charging computer-related activity are wire fraud (18 U.S.C. § 1343), copyright infringement (17 U.S.C. § 506 (a)), and illegal transportation of stolen property (18 U.S.C. § 2314).

Wire fraud presents a generic statute that is easily adaptable to a wide array of criminal conduct. Schemes to defraud of "money or property" or the "intangible right to honest services" that use the wires in their furtherance are prohibited by the wire fraud statute (18 U.S.C. § 1343). For example, individuals selling fraudulent products over the Internet can be subject to prosecution under the wire fraud statute.

Software piracy and intellectual property theft are important issues of the information age. Because the Internet offers an easily accessible means for transmitting copyrighted material, these crimes have the effect of costing U.S. businesses substantial sums of money each year. Often prosecutors use the copyright infringement statute (17 U.S.C. § 506 (a)) in proceeding against individuals committing these crimes. The No Electronic Theft Act (P.L. 105–147), passed by Congress in 1997, extends the reach of criminal copyright law to specifically include electronic means as one method for committing the crime (17U S. C. § 501 (a) (1)). The act also expands the scope of the criminal conduct covered under this crime, allowing for prosecutions without a showing that the distributor of the copyrighted material profited from the activity.

Computer crimes also have been prosecuted under the National Stolen Property Act. This was particularly true prior to the passage of the specific computer-related statute, the Computer Fraud and Abuse Act (18 U.S.C. § 1030). The National Stolen Property Act prohibits certain described activities involving the illegal transportation of stolen property (18 U.S.C. § 2314). There are, however, specific statutory limitations that preclude this offense from being used widely to prosecute computer crimes.

State statutes. All states have enacted computer crime laws. These laws offer different coverage of possible computer criminality. In some instances the state law resembles provisions found in the federal Computer Fraud and Abuse Act. Some states incorporate computer activity into theft and criminal mischief statutes, while others provide laws addressing sophisticated offenses against intellectual property. Computer fraud, unauthorized access offenses, trade secret protection and trespass statutes also exist in some state codes. In some state statutes, there is explicit legislative recognition that the criminal activity is a problem in both the government and private sector.

A state may use different degrees of an offense to reflect the severity of the computer violation. For example, a state may penalize what it terms an aggravated criminal invasion of privacy, which carries a higher penalty than a privacy invasion that is not aggravated. Several states have included forfeiture provisions, which permit the forfeiture of computers and computer systems as a consequence of the illegal conduct. State statutes include civil relief, allowing individuals harmed by violations of the computer statute to sue civilly for damages. Realizing the skills necessary for investigating computer crime, a state may include provisions for the education of law enforcement officers as part of its efforts to combat criminal activity related to computers.