Developments in Criminal Law - Essay Example

DEVELOPMENTS IN CRIMINAL LAW Cyber Crimes 1. Introduction The yearly cost of computer crimes to Americans alone was reported to be approximately $500 million and $10 billion per annum thus it is predictable that criminals have taken computers, as a new opportunity for crime. Moreover, access to computers and networks is inexpensive, hard to trace and the figures above seems extremely inspiring. Cyber crimes put forward sizeable dilemma for prosecutors as distinguishing offenders, production of evidence is correspondingly problematic, and the worldwide scope of the Internet intensifies jurisdiction problems. However, legislatures are beginning to close the gaps with new laws and because cyber crimes is an area of ongoing changes, continue to check statutes for factors that might affect computers as targets, as tools, and as incidental factors in crime. The objective of this report is to discuss critically the developments in criminal law in addressing cyber threats and other criminal acts online. It will cover traditional laws and computer-assisted crimes, cyber terrorism, bullying, stalking, effective legislations, and the significance of understanding the technical issues of cyber crimes in drafting a law. 2. Developments in Criminal Law 2.1 Traditional and Computer Assisted Offenses “Criminal law is a stagnant creature of the past, unable to adequately cope with the demands of a modern, technological society”. There is no argument that traditional offenses against the person such as homicide or inflicting bodily harm, if perpetrated by computer-assisted means such as hacking into a hospital system and modifying a patient’s prescribed medication to a fatal amount could be efficiently prosecuted under existing criminal laws. Correspondingly, there are particular laws in several jurisdictions prohibiting the endangerment of life by intruding with the guidance or control of aircraft or other forms of transport. There are also laws barring the communication of threats, harassment or stalking activity, though it should be recognized that a number of of these kind of offenses against the person have only recently taken discrete statutory form as offenses distinct from assaults. One chronic problem with common assault in some jurisdiction according to Smith et. al. (2004, p.88), has been the requisite of an apprehension of direct physical harm on the part of the injured party, so that tenuously communicated threats of violence have not always be adequate. By comparison, threats communicated through electronic communication maybe very hard to prosecute as assaults, whilst they may also fall outside the scope of older statutory provisions dealing with documents containing threats. However, in order to evade related intricacies linked to harassment and stalking, some modern legislation has purposely incorporated reference to computer and e-mail misuse. 2.2 Cyber Crimes and the Law It is obvious that the development of Internet commerce has produced unparalleled potential for long-distance fraud and theft. Moreover, whether for monetary benefit or for other grounds, intentional intrusion in the form computer ‘hacking’ and destruction of electronic data, propagation of computer viruses, and disruption of services can all be quickly recognized under existing criminal offences, subject to sizeable evidentiary and jurisdictional intricacies in the case of cross-border crimes (Smith et. al. 2004, p.89). “Attempts to address cyber crimes in the law are thwarted by the speed at which technology changes compared to the rate at which laws are created or revised” (Reyes et. al. 2007, p.4). Because cyber crimes is so fresh, existing laws are at times insufficient to deal with the problem thus legislation must be drafted to guard the public from this new breed of cyber criminals. For this reason, the United States made the Identity Theft and Assumption Act of 1998 in to a law and federal prosecutors are making considerable use of the statute to prosecute cyber criminals (Siegel 2005, p.308). In Australia for instance, criminal law is not primarily a federal responsibility. According to Broadhurst and Grabosky (2005, p.145), each of the nine jurisdictions in Australia such the Commonwealth, six States and two territories, have the power to legislate in this area. The Commonwealth has power to make laws to protect its own computers and data. Similarly, every jurisdiction in Australia has enacted computer offences. A further movement towards a national approach is the control of the Internet and its role in federalizing criminal jurisdiction. The new offenses in the Cyber-crime Act 2001 for instance, apply to all activities involving Commonwealth data computers or use of telecommunication service. Resembling anti-virus programs in computers, laws against computer crimes are also updating. There have been distinct changes in legal methods since the 1980s because it was becoming evident that the criminal law was having trouble keeping up with modern technology. This was because the criminal law found it hard to integrate computer data within its traditional conception of ‘property’. Even where the hacker went beyond simple access or copying, and caused damage to data or computer systems, it was not apparent that the behavior constituted criminal damage, an offense, which traditionally is limited to damage to ‘tangible’ property. For this reason, the first set of legislative responses had begun as early as 1983 (Broadhurst and Grabosky 2005, p.147). In the wake of the 9/11 attacks, the United States came up with a number of computer-related crime laws that can be use to charge under at least 40 different federal laws. These includes the Copyright Act and Digital Millennium Copyright Act, the National Stolen Property Act, the mail and wire fraud statutes, the Electronic Communications Decency Act of 1996, the Child Online Protection Act, the Child Pornography Prevention Act of 1996, and the Internet False Identification Prevention Act of 2000 (Siegel 2005, p.308). 2.3 The Need for Effective Legislation and Understanding of Technical Issues By requirement, the fight against cyber crime must engage more than just the police. Legislation must make suitable laws. However, enforcing, prosecuting, and interpreting cyber crime laws are also a predicament due to the lack of technical knowledge on the part of the group who are responsible with these functions. Legislators, generally, according to Shinder and Cross (2008, p. 30), do not have an actual perception of the technical concerns and what is or is not advantageous or even achievable to legislate. “Prevalence of cyber crimes lack clarification as to what it is that is particularly ‘cyber‘about them (Wall 2007, p.9). This is because when cases of cyber crime come to court they frequently have the familiar ring of the ‘traditional’ rather than the ‘cyber’ about them. These include classic offenses such as hacking, fraud, pornography, pedophilia and so forth, which are already part of existing criminal justice regimes. Conceivably more confusing Wall (2007, p.9) added is the distinction between the many hundreds of thousands of incidents that are purportedly reported each year and the comparatively diminutive figure of known prosecutions. Enhancing punishment for a crime because the offender uses a particular tool or new technology is nothing new in criminal law. Griset and Mahan (2002, p.270) explains that existing law enhances punishment when a crime involves an aircraft, automatic weapons, or the use of a telecommunication system. However, threats and other online crimes carried out by terrorists and other groups are considerably diverse because of the omnipresent character of the Web. Threat revealing private information transmitted over the Internet, for instance, not only can frighten its target but can also be a criminal solicitation to others unknown, inclusive with substantial information that aids in the proposed crime’s commission. Cyber stalking on the other hand refers to pestering on the Internet using different modes of transmission such as electronic mail, chat rooms, newsgroups, mail exploders, and the World Wide Web. It can also be referred to as an extension of the physical form of stalking where electronic means such as the Internet are used to pursue, harass or contact another in a spontaneous manner (Bocij 2004, p.9). However, noticeably few stalking fatalities contact the police for help and one explanation is that a number of people may not consider that what they are going through is a crime. According to Bocij (2004, p.9) this reaction is almost undoubtedly due to a lack of education concerning individual rights and anti-stalking legislation. Moreover, countless victims believed that the police are unlikely to help them for different reasons, such as not being familiar with anti-stalking laws or because of insufficiencies in the law. Cyber bullying involves a child or a teenager intimidating, threatening, or otherwise tormenting his or her peers using Internet technology (Shinder and Cross 2008). Cyber threats such as this can be tough to handle both emotionally for victims and legally for law enforcement officials. Conn (2002, p.169) explains that the law will normally recognize a threat as realistic or as a ‘true threat’ only if carried out in person or straight to an individual. Bullies and stalkers, predominantly cyber bullies and cyber stalkers, in general, do not straightforwardly terrorize their victims as they engage in a pattern of repeated behaviors that, in most circumstances, made the victim feel endangered. A good example Conn (2002) added is the Jake Baker case, a University of Michigan student who essentially named a female university classmate online as a woman he wanted to rape, mutilate, and murder. However, when law enforcement officials tried to take legal action against him, he evaded criminal prosecution by persuading the court that his explicit descriptions of rape and torment of his female classmate and other young women were not ‘true threats’. The case of Jake Baker demonstrates how complicated it may be to prove that a cyber threat is a true threat for which the person responsible for will be held responsible under the law. Finally, this also proves that our existing criminal law is a stagnant creature of the past and inappropriate in addressing the new breed of technological criminal offenses. 3. Conclusion Computer crimes present significant problems for law enforcement as identification of offenders, jurisdiction, and gathering evidence are relatively complex. Although there are existing laws against these crimes, attempts to address cyber crimes in the law are prevented by the rate at which technology changes compared to the speed at which laws are created or revised. Moreover, since cyber crimes is new, existing laws are helpless thus new legislation specifically addressing these crimes must be enacted to ensure public safety. The struggle against cyber crimes needs appropriate laws to help the police clearly identify and prosecute offenders. Threats and other online crimes are extensively complex as the Web thus enforcing and interpreting cyber crime laws requires technical knowledge on the part of the legislators as real understanding of the technical issues helps in identifying which is desirable or possible to legislate. Our present criminal law is therefore not enough and must be constantly improve in tune with the rapid technological development. 4. Reference List Bocij Paul, 2004, Cyberstalking: Harassment in the Internet Age and how to Protect Your Family, Published by Greenwood Publishing Group, U.S.A. Broadhurst Roderic and Grabosky, Peter, 2005, Cyber-crime: The Challenge in Asia, Published by Hong Kong University Press, Hong Kong Conn Kathleen, 2002, Bullying and Harassment, Published by ASCD, U.S.A Griset Pamala and Mahan Sue, 2002, Terrorism in Perspective, Published by SAGE, U.S.A. Reyes Anthony, Brittson Richard, and O’Shea Kevin and Steel Jim, 2007, Cyber Crime Investigations: Bridging the Gaps Between Security Professionals, Law Enforcement, and Prosecutors, Published by Syngress, U.K. Shinder Debra Littlejohn and Cross Michael, 2008, Scene of the Cybercrime, Published by Syngress, U.K. Siegel Larry J., 2004, Criminology: The Core, Published by Thomson Wadsworth, U.S.A. Smith Russell G., Grabosky Peter N., and Urbas Gregor, 2004, Cyber Criminals on Trial, Published by Cambridge University Press, United Kingdom Wall David, 2007, Cybercrime: The Transformation of Crime in the Information Age, Published by Polity, U.S.A. Read More