Information technologies and organized crime
Date: November 05, 2003Source: Computer Crime Research Center
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NextCommentary to Article 272 of Criminal Code aggravates emerging problems rather than solves them. Modern computer technologies have essentially removed borders between machine carriers of information and “non-machine”. Information can be easily entered into the computer from either a sheet of paper or floppy. Different technical input devices are used for that purpose: scanner and drive.
According to Item 6 of studied Commentary to Article 272 of Criminal Code (by the way, the interpretation of the given concept and some others is the same in the comments of different authors), the destruction of information “by means of outer thermal, magnetic or mechanic influences on the machine carrier is not an objective side of this crime. It is not quite clear why the deletion of floppy data in the computer can be considered an objective side of the crime whereas magnetic influence upon the floppy – not. The result is absolutely the same, information being deleted by means of magnetic waves.
The treatment of “copying” is not clear as well. Commentary describes it as laying from the machine carrier on the adequate one. For example, Article 272 supposes not to consider photographing from the display screen to be the same. How then should photographing of the screen with digital camera be regarded? It allows obtaining a machine carrier itself.
The classification of electronic computer in Item 16 of Commentary as “compact and etc” is strange or at least outdated. Modern computer classes are characterized by memory capacity, speed of response and so on rather than size. In some works, computers are divided into domestic and professional. Such a definition seems to be quite logical but, in our opinion, strongly attached to the concrete stage of computing technique development: computers, which were super-professional five years ago, cannot be considered as domestic ones now.
In fact, the concept itself of computer is now very ambiguous. For example, how can the device with Sagem WA3050 terminal, which combines functions of pocket computer and GSM cell phone, recognizes hand-written texts, has a set of software (Word, Excel, Outlook, Internet Explorer), IK-port, USB-port, loudspeaker, digital Dictaphone and MP3 Player, be called? By the way, this “monster” weighs about 150g (26).
The content of Articles 273-274 of Criminal Code, especially Part 2 of Article 273: “the same actions entailed grave consequences through carelessness” arouses some questions. There appears a reasonable question: How can grave consequences caused with intention be qualified?
After briefly discussing problems emerged at the analysis of CC Article 28, let us gradually consider other articles of Criminal Code, which should be supplemented and commented.
First, it is CC Article 17 “Crimes against person’s freedom, honor and dignity”. Is it not evident that aspersions “cast” in Internet are more dangerous than those published in the most popular mass media and, accordingly, must be punished more severely? The same can be referred to Article 130 “Outrage”. Consequently, the following wording: “as well as spreading in Internet and other global networks” can be added to Part 2 of CC Articles 129-130.
CC Article 13 “Crimes against person’s constitutional rights and freedoms” and CC Article 137”Violation of private life immunity” certainly require introducing qualificatory characteristic: “with use of computer technologies”. When taking into consideration that information on persons is stored now in many automated databases (law enforcement agencies, hospitals, house managements, banking establishments and so on), it is evident that the use of computer data can cause more damage than crimes “committed by a person abusing his official position”. In particular, as the foreign experience shows, computer technologies in firms and companies are turned into the instrument of shadowing their officials that is the rudest violation of person’s rights.
CC Article 140 “Denial of information” should apply to information stored in automated databases and banks.
CC Article 144 “Interference with voting rights and work of election committee” deserves special consideration. Taking into account the availability and operation of State automated system (SAS) “Elections” (27), its Part 2 should contain Item “g”: “committed by interfering with the operation of “Elections” automated system and entering inauthentic data or falsifying results”. RF CC Article 272 regulates modification of system programs. Everything mentioned above can apply to CC Article 142 “Falsification of voting documents”.
CC Article 146 “Infringement of copyrights and related rights” should cover works kept in digital (computer) forms and have corresponding comments. The same can be referred to CC Article 147 “Violation of voting and charter rights” (28).
CC Chapter 20 “Crimes against family and under-age persons” and CC Article 155 “Divulgence of adoption secrets” should contain qualificatory characteristic “by means of computer technologies” on the analogy of calumny, outrage and etc.
CC Chapter 21 “Crimes against property” requires special consideration. In this case, two approaches are possible. First, this chapter should be added with a new article providing for responsibility for theft where the use of computer technologies represents a way of committing a crime. It has a definite logic. The analysis of this chapter shows that a way of committing a crime can give occasion to resolving this problem in such a manner. For example: the main objects of theft, fraud, misappropriation and plunder are property relations; the difference between these crimes consists in the way of committing them.
Secondly, in our opinion, some crimes in this chapter should be qualified as computer crimes. So, taking into account that “Law of information…” defines a keeper of information and the encroachment upon property relations is an objective side of theft, illegal copying of information can be viewed as a variety of thefts and qualified this crime in accordance with CC Articles 158 and 272.
In particular, such qualification can be useful in those cases when information comes under the law protected category and actions of the guilty person can be qualified according to CC Article 272, but belongs to juridical or physical persons and some financial and other resources were spent to make and store it. The theft of such information (plunder or illegal copying) causes a real material damage to its owner or keeper.
CC Article 159 “Fraud” should be widened by adding to its disposition “including with the use of computer technologies” (for example, reprogramming of playing machines, swindle in on-line trade and so on that coincides with CC Article 272 “Information modification”). CC Article 160 “Misappropriation and embezzlement” can be treated in the same manner.
Crimes provided by CC Article 163 “Blackmail” by means of computer technologies (ex. with menace of destroying, damaging or blocking information – CC Article 272, or divulging that taken from automated data banks – CC Article 272 “Copying”) could be committed in such away. Here is a typical example: Saint-Petersburg hacker (nickname Maxus) stole from the largest foreign on-line bank several hundred thousand numbers of credit cards. He got into contact with the suffered company leadership and offered to exchange them for one million US dollars. The bank refused to do it and then numbers of credit cards were made public on some on-line sites and theoretically, everyone could draw money from them (29).
Part 3 of CC Article 165 “Material damage caused by deceiving or betraying of confidence” also requires to be added with: “committed by using computer technologies”.
The intentional (CC Article 167) or careless (CC Article 168) destruction or damage of property in those cases when computer information was a crime object could be qualified according to CC Article 272.
CC Chapter 22 “Crimes in the sphere of economic activities” and, in particular, Articles 171 “Illegal business”, 172 “Illegal banking activity”, 173 “False business”, 174/174-1 “Legalization of illegally obtained funds” is a special interest to us. It is generally known that such crimes are committed now by falsifying computer information. Two conclusions result from this.
First, these crimes committed by using computer technologies (forgeries in bookkeeping and accounting systems, double entry bookkeeping...
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