Information technologies and organized crime
Date: November 05, 2003Source: Computer Crime Research Center
By:
NextAfter discussion the final version of the new RF Criminal Code draft had only three articles combined into Chapter 28 “Crimes in the sphere of computer information”: Article 272”Unauthorized access to computer information”; Article 273 “Production, use and spreading of virus programs for computing technique”; Article 274 “Violation of maintaining computers, computer systems or their networks”.
Because of their specific nature and high social danger computer crimes practically from the moment of their emergence were analyzed by criminologists, criminalogists and computer experts from various standpoints. However, there are no common views on such crimes up to now.
Conditionally experts’ opinions can be divided into three groups:
1. Computer crimes are an independent kind of delinquent activities that represents self-dependent corpus delict.
2. Computer crimes are not an independent kind of criminal activities; they should be viewed as a qualificatory characteristic of usual, “traditional crimes”, computers being an object of crimes, crime instrument, means of plotting crimes or environment of crime commitment.
3. Computer crimes are any encroachments upon people’s connections and relations by means of computing technique.
The reservation should be made that the third approach is excessively broad and we cannot support it.
The first one is quite evident, understandable to all and just because of that widely used in the world practice. The most striking example of new legislative acts of such a kind is the British “Law of terrorism” from 2000. According to it, actions that “break seriously the operation of any electronic system or disturb gravely its work” are considered as acts of terrorism (22). US law of antiterrorism known as “Act 2001” and accepted by Congress in six weeks after terrorist attacks on New York and Washington appears to be the same. Here Congress introduced fresh concepts that broaden the interpretation of “terrorism”. There appeared a new legislative concept of “cyber-terrorism”, which possesses “different qualified forms of hacking and causing damage to protected computer networks of citizens, juridical persons and government departments, as well as that to computer systems, which are used by State offices to organize national defense or provide national security” (Article 84) (23).
How perspective is such an approach? In our opinion, it is extremely limited. If the indicated logic is followed, it is necessary to enter new corpus delict: cyber-fraud, cyber-calumny, cyber-espionage, cyber-forgery, cyber-carelessness, cyber-sabotage ant so on up to the infinity, more exactly, until the Criminal Code is exhausted.
We consider the second direction more expedient to correct Criminal Code without its critical review.
First, terms and concepts in Criminal Code articles are to be interpreted in concordance with up-to-date comprehension (from the standpoint of information technologies).
Secondly, qualificatory crime characteristics are to be widened in some cases by inserting into them a definition: “with the use of modern computer technologies” (when their usage evidently increases the danger of the concrete crime).
Recurring to above-mentioned examples of foreign legal activities, we suppose that it is not necessary to introduce into RF Criminal Code the same articles of “cyber-terrorism” (well-known case with Ingalisk power station, for instance). It suffices to add an item: “with the use of modern computer technologies” to CC Article 205 Part 2.
Without pretending to the analysis completeness, we want to consider briefly some articles from RF Criminal Code by using a supposed approach; we will analyze those articles with sufficiently evident modifications and requiring no deep legal study.
Taking into consideration that the text of Criminal Code articles does not reveal concrete concepts and their interpretations, we will take Commentary to RF Criminal Code as an object of the supposed analysis. In spite of that Commentary – according to the most common standpoint – is not a source of law; its content allows judging sufficiently firm and coordinated interpretations of main concepts and terms used in the articles of Criminal Code. (The consideration of different points of view stated in books and monographs is quite difficult because of opinions largely scattered).
The volume of work does not allow examining all existing comments to Criminal Code and the authors decided on Commentary edited by Y. Scouratov, which seems to be “typical” enough.
To begin with, it should be reminded that some main informatization concepts, which we are going to use, have been already introduced into the law field. Among them are:
1) Information (reports on persons, objects, facts, events, phenomena and processes independently of the form of producing them) – “Law of information, informatization and protection of information” (24);
2) Owner of information (keeper of information resources, information systems, technologies and means of maintaining them – a subject, who fully realizes authorities of possessing, using and disposing of the mentioned objects);
3) Owner of information, carrier of information – the same;
4) Electronic document - “Law of electronic digital legend”;
5) Information systems (the same).
The individual consideration should be given to the document concept, which takes the most common definition in the “Law of obligatory document copy”: “Document is a material object with information fixed as a text, sound recording or image, which is intended for transferring in space and time, storing and commonly using”. The «Law of informatization, “…defines this concept concretely: “documented information (document) is information fixed on the material carrier and having details, which allow identifying it”.
With the “Law of electronic digital legend” carried into effect, the electronic document becomes identical to the traditional one and can be used in all the cases requiring its standardized identification. It should be noted that the sequential interpretation of this term with reference to all documents mentioned by Criminal Code in itself requires a diverse reading of many articles allowing the different understanding of their content.
Further we will use the mentioned conceptual apparatus, one more remark being made. While examining the question of treating definitions and terms with reference to information law, its specific character should be taken into consideration. We cannot but agree with I.Bachilo as to that “particular for this branch of law is the priority of those or other sources depending on the specific character of information relation object, persons connected with the concrete law-relation and content of the latter”. At the same, time this author as well following traditions of jurisprudence puts standards in the last place among sources of information law. In our opinion, taking into account peculiarities of this field of law where technical (technological) component is the most important, standards have to play a special role in forming its conceptual apparatus. It should be reminded that the standard is a document developed on the base of consensus and approved by the authoritative body, containing universally and frequently used rules, general principles or characteristics as to different kinds of activity and its results, and which aims at achieving an optimal degree of regulation in the definite field. There is no need to prove that experts in different fields can more easily find mutual understanding at the use of terms approved by State standards. For example, if the text of any normative act, document, scientific article contains such a term as “carrier of information”, it is always to mean: “a physical person or material object including physical fields where information is represented as symbols, signals, technical solutions and processes”, if otherwise specified.
Let us start analyzing Criminal Code and above-mentioned Commentary with Chapter 28 of RF Criminal Code, which deals with crimes committed by using computer technologies.
Even on the face of it, evident contradictions in terms and meanings in Article 272 of Criminal Code arrest our attention. The exhaustive list of crimes resulted from unauthorized access does not include the most simple, extended and dangerous one – reading of information. In those cases, when it is a matter of governmental, commercial, banking, professional secrets, such an action can be a finished crime. In spite of the fact that the article is called “Illegal access to computer information”, it does not contain any sanctions for illegal access as such. According to it, criminal proceedings are instituted only when this access resulted in “destroying, blocking, modifying or copying information, disturbing the operation of computers, computer systems or their networks”. Hence, reading of information protected by law is not a crime. Meanwhile, it is quite evident that in many cases a criminal suffices to know any information: parameters of a new weapon or amount of money on the partner or competitor’s account.
Extremely unsuccessful is the use of “electronic computer” in the text. This term is...
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