Dr. Stanislav L. Kataev,
Criminalistic and social aspects cyber criminality
Given article comments the concept of struggle against computer criminality. In the beginning some remarks to a format of the given document. Authors determine the concept of strategy and tactics of struggle against computer criminality in Ukraine, as a legal statutory act. Actually this document combines both legal statutory acts and extensive comments to them. In our opinion, it is necessary to divide two sorts of the document: precisely mark legal statutory acts and separate the comment to them. We do not pretend to formulate the legal acts, but are ready to participate in discussion of social aspects of computer criminality. The concept assumes development of ideology, the conceptual approach to the formulation of the legal acts. To these parties of the concept we have remarks.
Authors determine frameworks of the document, as «the major bases of a state policy, organization and management of government bodies concerning precautions, prevention, revealing and disclosing of crimes which are made with use of computer information technologies, and also revealing of the reasons and conditions of fulfilment of such crimes, computer criminality as a whole». Actually some fragments of the concept specify wider approach. It is possible to relate to computer criminality and those kinds of crimes that are made in sphere of the economic activities covering manufacture of computers, their selling, computer services, etc. In other words, in this case, the matter concerns not only criminality with use of computer information technologies. It is possible to speak more widely - about criminality in sphere of functioning of computer and information technologies, about criminality in sphere of manufacturing, trade, distribution, exchange of computer technologies and services connected with it. For example, in such areas of legal liability as taxes and the copyright it is very difficult to separate, where the question is computer criminality in narrow and in a broad sense.
In this case one of kinds of computer crimes are the usual tax crimes made in sphere of functioning of computer and information technologies and services connected with it. We want to express one's view as a comment to article 3.4. of the Concept «Organized transboundary computer criminality with use of the Internet». In this article it is written: «Illegal conversion centers are used by criminal formations for carrying out of illegal currency transactions with application of Internet, including granting of services to other subjects of economic activity for tax evasions, converting of currencies, etc. ». Further the tax theme is mentioned in Section 14." The direction of organizational actions » in particular in 14.1. «The directions of tactics of counteraction against cyber criminality» regarding articles «The state tax administration of Ukraine, in structure of tax police», i.e. are mentioned bodies which are called to struggle with computer criminality.
In the given article one of elements of shadow economy is mentioned. The computer criminality have a closed connection with this sector of economy of our state. It is curious, that Americans name this sector not shadow, but virtual. It pulls together computer criminality with shadow economy even more closely.
Presence of shadow economy is considered one of characteristic features of a modern Ukrainian society. The shadow economy can be subdivided into two big groups. The first is the criminal business based on violence, on manufacturing and spreading of drugs, weapon, including with application of computer technologies. With this kind of shadow economy it is necessary to struggle resolutely and any compromises with it are not acceptable. This part of shadow economy can be named criminal economy.
Other part of shadow economy - it is financial, economic and other activity that bring the income in computer sphere, but which is latent from the statistical account and evades from the taxation. This type of activity we can name as a tax crime. Here there is no violence, there are no forbidden kinds of activity, only usual economic civil activity which for whatever reasons evades from the duties before the state, does not wish to share a part of the incomes with a society. It is difficult to take into account volume of this activity. The author is compelled to admit, that types the given text on a computer collected and realized in shadow sector. The typical reasons of tax criminality are backwardness of market relations, excessively heavy pressure of taxation, the insufficient control from the side of tax bodies, an advancing of economic imagination of the manufacturer from creative opportunities of the tax legislator.
In the Concept it is necessary to mention problems of tax criminality in computer sphere: its sizes, classification of tax crimes, functions, a degree of danger, and ways of struggle.
Whether all tax crimes in computer sphere can be classified as swindle and larceny, as acts in an equal measure falling under the criminal code and condemnation by a society?
In the field of economic activities not all kinds of deviations from the current legislation in an equal measure are condemned by the law and national sense of justice. This distinction is in estrangement of the state and a society, in discrepancy of interests of the state and the person. The problem concerns kinds of infringements of the legislation, the sizes of infringements and subjects of such infringements. It is possible to speak about presence of the selective approach to tax crimes, about selectivity of punishment for these infringements. In other words, one infringes of the tax laws punish, and other same infringes do not punish. And not because he is innocent until proven guilty, but because the subject of infringement can have the status of “unpunishable:”
And such selectivity concerns not only mass consciousness, but also law-enforcement and tax bodies on behalf of the state. The system of public and economic relations in the state is those what to break the law is necessary for a simple survival. On this reason the requirement of tax amnesty and amnesty of capitals, by the way, is based. And to conduct economic - financial activity without infringements it is practically impossible. Only very large state enterprises or the enterprises with a large state share can break the law « in a measure » i.e. so, that on such infringements is possible to look «through fingers».
Selective justice pursues not simply for infringements, and for the infringements having except for legal economic, political, personal or any other not legal aspect. Thus, it is possible to note presence of the social reasons of tax crimes and sociopolitical aspect of punishments for tax crimes.
Formally, the shadow computer economy is the activity, which has been not revealed by control bodies. But in conditions of selective justice the shadow economy is supplemented with activity, which control bodies do not wish to reveal. In this case, control bodies become a part of shadow sector, as accomplices of tax infringements. Motives of such loyalty to infringe can be based on judgments of common sense, as tax specialists also understand pernicious character of a part of the tax laws for some class of economic activities. Infringes of tax laws can be in friendly or related connections with tax specialists, or receive gifts or services. Infringes can have influential patrons among politicians, managers, police departments and other power structures. The revealed and punished infringes of tax instructions appear, thus, people without influence, insignificant on scales of economic activities or that how have guilty before politics, managers, police and other centers of authority. So, selectively computer clubs in different cities are closed. Objectionable businessmen are punished. In these conditions the perception of tax laws is considered as means of punishment, instead of the legal style sheet equal for all.
There can be next ways of evasion from taxes in computer and information sphere.
1. Concealment of objects of the taxation, i.e. rendering of computer services of activity without registration.
2. Understating objects of the taxation, i.e. distortion of the account of services, bases of the taxation.
3. Wrongful use of privileges in trade of computers and other information technologies.
4. Evasion from payment of surtax by unaccordation that taxes bodies cannot take into account.
5. Complex, various kinds of evasion from taxes due to lacks in the tax laws.
There are following social conditions and factors of occurrence of computer criminality.
1. Distinction between a level of social development of a society and a technological level. It is similar with disbalance between a level of development of intelligence and physical development. At some children that is considered by pediatrists as illness, undesirable anomaly. Technological development is not accompanied by moral development, are not formed adequately to concept and norm of the responsibility
2. The country solves simultaneously tasks of modernization and postmodernization with presence of active components of a traditional society. In different situations of a public life those or other components are shown. So, postmodernization is shown in active use of computer technics, and elements of previous stages of development are shown in primitive larceny and low motives. For conditions of information society the responsibility of the organizations is formed. In the organic information environment the responsibility is organically formed, at presence of a modem and traditional society such responsibility is not formed organically.
3. One of the reasons of criminality during the crisis period is anomia, weakness of norms. There are no necessary moral samples; universal standards of behavior not always correspond to requirements of an information society. The ethical code of computer community, which would fix norms of the computer information use, is necessary for the solution of this problem, has generated bases of corporate morals and the information responsibility of the organizations.
4. Break in levels of development of an information society in the West and Ukraine generates sometimes absurd situations of discrepancy of moral, legal standards and norms. Conditions for temptation are created, temptations to take advantage of more convenient and cheap form of maintenance with the information.
5. We should mention, a problem of preservation of the intellectual property of Microsoft. License programs cost very expensive for the mass Ukrainian consumer and there is no moral barrier to use of the "broken open" programs, which are cheaper.
6. The comment to article 3.1.3. of the Concept. The responsibility of the organization (legal: tax, regional Office of Public Prosecutor and etc.) bases on interests of a society. Therefore display of irresponsibility can be a situation of literal following to formal norms to the detriment of global interests of a society. The question is using of Microsoft. If completely to stick to the law we can consider this situation impossible for informatization of a society, Ukraine will roll down on a level of 60th years. Enormous harm to a society will be put.
7. In conditions of uncertainty of the right of the responsibility the uncertain norm is more useful, since certain can make significant damage to a society. Premature excessive codification also is dangerous, as well as lack of standardization of norms when for this purpose conditions have ripened.
Comment to the article 3.6. “Latency computer criminality”. Polls can help in victim searches at studying of latent computer criminality. So, it is difficult to estimate damage from viruses since law enforcement bodies do not register the majority of cases. The comment to article 3.5. “Hacker movement”, as the social phenomenon and as base of the organized crime.
One of directions criminalistic researches is studying of computer community, its sex and age structures, a social composition, norms and values of active participants of computer sphere. The next way is studying of network community or cyber society, that is pool of Internet users. Such community has the subculture, the especial norms and values. The network community can act, as the big not contact group of people having the common interests and a uniform occupation. The network community can be not legal. It can be contact.
As in a case of Internet conference or other type of direct dialogue through the Internet. The network community as well as other anyone can be criminal or contain criminal elements. Therefore corresponding measures of criminal components recognition are necessary.
The resulted thesis raises the doubts, that composers of viruses are frequently jobless experts in the field of programming. Not finding themselves applications they with a view of self-affirmation compose viruses. In the developed countries there is a big labor market in sphere of programming hacker movement and the composition of viruses is widely advanced. The reasons of such original vandalism, which is not having, the concrete address or object of damage lay, in social - psychological sphere, in subconsciousness, in psychological defectiveness. The panto-sociological reason of unmotivated vandalism is the divergence between rates of technical and moral progress.
Criminalistic aspects of a cyberspace contain social components. The social essence of computer crimes lays in anomia, in transitivity of the Ukrainian society, in a divergence of rates of moral and scientific development. The computer criminality is a part of the general criminal situation. Apart from specific ways of struggle against the computer criminality, demanding adequate measures and computer character, traditional measures of struggle against crimes with attraction of tax bodies, police and other retaliatory and supervising institutes are used.
Computer crimes are an original payment for progress in technical sphere. With growth of perfection of computer technics refined character of computer criminality grows. Accordingly ways of struggle against this kind of crimes should be improved. This methods should have system character and take into account alongside with others and social aspects.