Computer Crime Research Center

Trends & issues in crime and criminal justice (Part II)

Date: December 24, 2004
Source: Australian Institute of Criminology
By: Russell G Smith

No. 286: Criminal forfeiture and restriction-of-use orders in sentencing high tech offenders

Russell G Smith ISBN 0 642 53855 7 ; ISSN 0817-8542 October 2004

Courts in the United States, Europe and Australia have in recent years experimented with sanctions which require the computer of an offender convicted of high tech crimes to be forfeited, or which seek to prohibit the offender from undertaking certain, or all, computer-related activities like possessing or using computers or gaining access to the internet. Some courts have also imposed requirements that the offender's computer activities be monitored by a probation officer or that the offender's computer have filtering software installed to prevent access to certain types of content. This paper considers whether such orders are legally and practically justifiable as appropriate judicial punishments.

Toni Makkai Director

This paper looks at certain sanctions that have been applied in recent years to persons convicted of computer-related crimes. The kinds of crimes under consideration include gaining access to computers without authorisation (so-called 'hacking' or 'cracking'), dissemination of viruses, and possession or distribution of illegal content such as child pornography. The discussion examines whether the use of criminal forfeiture and restriction-of-use orders satisfy the various aims of sentencing, and considers whether the courts in a number of countries have acted in accordance with the law when seeking to impose these sanctions.

The methodology used follows that adopted by Smith, Grabosky and Urbas (2004). It involved the identification of 240 cases of high tech crime from Australasia, Europe and the United States in which sentences were imposed on offenders. Cases were identified from searches conducted of legal databases, media reports and secondary sources including books and government reports. In 33 cases, sentences were imposed that involved the use of criminal forfeiture and restriction-of-use orders, and it is these cases which form the basis of the following discussion. There have only been isolated cases reported in Australia:

In the absence of other decisions, Australian courts will be guided by what has occurred in other countries that have experimented with such orders – especially the United States (where most such cases have been decided). Although sentencing laws differ across jurisdictions, the fundamental principles remain similar in determining whether these orders fulfill the aims of sentencing.

High tech crime and punishment

Grotius, the seventeenth century jurist and philosopher of law, defined punishment as 'the infliction of an ill suffered for an ill done.' Punishment entails something which is assumed to be unwelcome to the recipient or which, in the words of Hart (1968), invokes pain or other consequences which are considered to be unpleasant, such as loss of liberty through incarceration, disqualification from some activity, or loss of something of value such as money or time.

Over the past decade, high tech crimes have attracted the complete range of available sanctions, from the death sentence (see People's daily online [2000] for the case of a computer hacker who was sentenced to death for embezzling 1.66 million yuan [about US$200,000] from customers' accounts at the bank where he worked) to the most lenient of fines and unsupervised release orders.

Forfeiture orders seek to punish offenders by removing from them something of value, which in the case of high tech criminals is the ability to use computers and the internet. This is clearly of considerable value, both financially (in terms of undertaking gainful employment) as well as psychologically (in terms of demonstrating one's expertise and enhancing one's self-esteem). Hence, some courts have imposed orders requiring the forfeiture of computer hardware or conditional orders that seek to limit computer-based and online activities as a form of punishment.

The objectives of sentencing can be classified under two broad categories: retributivism and consequentialism. Each has particular features that sentencing needs to accommodate if it is to achieve its purpose. These include proportionality, denunciation, incapacitation, deterrence, rehabilitation and restitution. Although sentencing judges take all these considerations into account when choosing appropriate sanctions, the process tends to be intuitive rather than empirical. In the case of R v Williscroft [1975] VR 292, Justices Adam and Crockett in the Court of Criminal Appeal of the Supreme Court of Victoria remarked:

ultimately, every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects in the punitive process.

Applying these various aspects to the circumstances in which forfeiture or restriction-of-use orders have been made has raised some difficult legal issues. In the United States, Canada and Australia there have been 33 publicly reported cases decided over the past 11 years in which 58 forfeiture or restriction-of-use orders have been made involving computers (in some cases multiple orders were imposed). Almost all involved conditions placed on periods of supervised release, although in one case conditions were imposed on computer use while the offender was in prison (these conditions were set aside on appeal; see United States v Ginyard 342 US App DC 83; 215 F 3d 83; 16 June 2000). In another case conditions were imposed on computer use while the accused was on bail (which were not challenged by the offender).

As is apparent from Table 1, in approximately one-third of cases these conditional orders were not challenged on

appeal; in another third of cases the conditions were challenged and set aside on appeal; and in the final third of cases the orders were affirmed. The jurisprudence remains in a period of development although it is now clear that certain orders should not be used.

Legislative authority and validity of orders

Although the legislative authority for the use of forfeiture and restriction-of-use orders varies across jurisdictions, it is generally possible for sentencing judges to order forfeiture of the implements used in the commission of an offence, or to impose conditions on periods of probation or parole that require the offender to refrain from doing certain activities or to comply with any reasonable directions of a probation officer. In most jurisdictions, the law requires special conditions to be used only where those conditions:

See, for example, Neil v Steel (1973) 5 SASR 67; R v Conn, Supreme Court of Victoria, 5 October 1981; R v Harvey (1989) 40 A Crim R 102; Temby v Schulze (1991) A Crim R 284. There are also in some jurisdictions statutory time restrictions on the maximum duration of such orders.

In the United States, it has been argued in some cases that the imposition of restrictions on the use of computers or monitoring of online activities infringes the first amendment of the constitution concerning freedom of speech. It has been held, however, that as long as restrictions are reasonably related to the offence and defendant's history, are primarily designed to protect the public and promote rehabilitation by preventing recidivism, are expressly related to those ends and, particularly in light of the defendant's past conduct, involve no greater deprivation of liberty than is reasonably necessary to achieving those ends, they should survive a first amendment challenge (Painter 2001; United States v Ristine, Eighth Circuit, 2 July 2003; United States v Mitnick, Ninth Circuit, 14 May 1998). Table 1: Restriction of possession and use cases, 1992–2003 Order Unchallenged Held valid Held invalid TotalPage 1 2 3 4 Next

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