Criminal law aspects of computer crime

_____________________________ IJoFCS (2017) 1, 36-41 The International Journal of FORENSIC COMPUTER SCIENCE _____________________________ www.IJoFCS.org DOI: 10.5769/J201701004 or http://dx.doi.org/10.5769/J201701004 Criminal law aspects of computer crime Siniša Franjić1, Semyon Silaev2 (1) University of Croatia, Email: sinisa.franjic@gmail.com (2) Department for Criminal law and Criminology, Faculty of law, Kemerovo State University, Kemerovo, Russian Federation, Email: usiacki@mail.ru Abstract: Parallel to the enormous technological advances of the late 20th century in terms of the strong development of modern information technology, there is also the problem of the use of computers in various fields of human activity. This issue includes a lot of important issues and it should be noted that the general impression that the legislation is lagging behind technological development. This paper discusses the most common forms of computer crime from which it is clear from the kind of issues encountered legal systems into their national legislation must provide penal provisions relating to offenses of computer crime. Keywords: computer crime, computer technology, law 1. Introduction Concurrently with the great technological advances of the late 20th century in terms of the strong development of modern information technology, there was a problem and the use of computers in various fields of human activity. According Krapac (Krapac, 1992., pp. 39), this issue includes a number of important issues, namely: the ratio of legislation towards the development of technology and science, the issue of human rights which may jeopardize the application of computers in the collection and processing of personal data and the protection of certain issues of legal values in a society from criminal attacks using the computer. When considering the use of new technological solutions in the context of national legislation, the general impression is that the legislation always delayed behind technological development. It was many times in history, so it is still with computer crime legislation. And when considering why this is so, it should be remembered that lawyer only a man who is capable to register observer delinquent behavior within the new technological developments and a number of issues that same technological development opens (Krapac, 1992., pp. 41). This means that new technological developments only after a certain lapse of time can be regularized. 2. National criminal legislation and the use of computers Modern information technology have brought a number of socially unacceptable behavior that need to be adequately sanctioned. But to make any rational attempt criminalization of certain behavior to be successful, it is necessary to proceed from several assumptions ((Šimundić and Franjić, 2009., pp. 37-40): • tСe notion tСat a certain Рood is a fundamental social value that requires legal protection and that the attack on him is the ___________________________________ th Paper submitted on: June 26 , 2017 __________________________________________________________ Si iša Fra jić, a d Se yo Silae behavior with the appropriate amount of criminal lawlessness • tСe fact that a crime may provide some behavior only if it is from the standpoint of social utility that is necessary. If the protection of fundamental values can not be achieved by some other means • tСat tСe incrimination can acСieve successful protection of society and man. That the construction of such a legal protection that can be achieved in practice 3. The most common forms of computer crime They are characterized by the fact that the unauthorized access can be reached by persons who he physically can access these by the persons to be accessed by unauthorized remote access. The most common forms of computer abuse are: 3. 1. Unauthorized access to a computer system (hacking) Unauthorized access to a computer system are actions aimed at circumventing checks access to the system and allow the perpetrator to be authorized under the guise of serving the services and resources of the system. Access check is carried out in two ways, and to identification and authentication, where the identification means establishing the identity of the applicant, under the authorization of the means establishing the authority of the applicant, and all what he can do when he approaches to the system. The consequence of the attack was a violation of the confidentiality, availability of data and applications, and service availability. The perpetrators were people who were given access to the system which uses the terminals of other employees or to people via modem to access the system. They are divided into internal and external perpetrators. Internal perpetrators approach achieved mainly by negligence of other employees while external perpetrators use various methods to come up with passwords to access the system. 37 The perpetrators take care that acts committed by other people's computer systems or the use of cloned cell phones remain undiscovered to hide their mark and disable the others in search of them. 3. 2. Computer Espionage Computer espionage is form of manipulation where the objective is the unauthorized obtaining of secret data and information stored in the systems or transmission through telecommunications channels. The sale of such acquired information seeks to acquire unlawful material gain. As the perpetrators appear to people in a way they want to eliminate competition and to get information that will be able to use in their work. These are people with a high level of education in information and telecommunication technology. Sometimes working alone, sometimes working to order. When you accidentally get the information, they offer themselves in the market. External entities attempt to access the system unnoticed, bypassing the existing measures of physical protection. Professionals who have at their disposal various means, using all the weaknesses of the system in order to reach the goal. 3. 3. Computer Sabotage Computer sabotage activities are aimed at preventing the normal operation of the system or prevent its use or the use of its resources. This includes deleting, modifying, damaging data, damaging programs with the intent to prevent its further use and operation. Computer sabotage is particularly dangerous when it happens decline in economic systems, military and all other infrastructural facilities. The perpetrators are people with higher technical knowledge using sophisticated means and methods. The most common culprits are hackers, terrorists, criminals are motivated by greed who do it for revenge, political and other beliefs. It is a physical activity that leads to a further disabling or obstructing the use of a computer. 38 Criminal law aspects of computer crime ____________________________________________________ 3. 4. Computer Fraud It refers to the various types of data manipulation due to the acquisition of the illegal gain. By manipulating comes during input, processing, storage, and exchange of information within the individual information system or in the exchange of information on the Internet. Easy to do, and difficult to detect because the perpetrators use someone else's personal information. The perpetrators are mostly employees of legal persons authorized to access the computer system. Internal perpetrators in the absence of their colleague careless use of their terminals, and often it is about former employees who in revenge (mainly due to the loss of a job) so act. 3. 5. Computer Forgery There are two types of manipulation. In the first computer used for counterfeiting other people's existing documents in digital form, and the other is a computer used to create such documents and committed forgery. The perpetrators have greater knowledge and use of more sophisticated legal and illegal equipment that is no longer a critical element because the technology is becoming cheaper. With a relatively small expenditure, realized true results. Authorized or unauthorized access to the system in which there are such documents to modify the existing data, or copy the new document. Use the scanners to transfer to a computer, programs which change their content and form, and printers that print on paper. 3. 6. Software Piracy Software piracy make unauthorized reproduction and use of protected software and it is one of the most widespread forms of computer crime. Digital format allows easy playback and sharing program which is a contribution given the lack of legal regulations. The perpetrator has a lot because of this form of computer crime is not necessary to know any special equipment. It should be noted that the perpetrators of software piracy divided into two groups: the first includes those who work that in the entertainment reasons, and on the other those who work for the acquisition of the illegal material benefits. In other words, in the second group are the perpetrators who knowingly copy and distribute protected programs without the permission of copyright holders and make money from it. It takes a little technical knowledge, and it also contributed the development of modem, but also the development of the Internet. 3. 7. Harmful and illegal content This is illegal acts which, with the help of modern information technologies reproduce, produce and distribute, and contain various immoral and illegal content in digital form. Usually there is child pornography, sadistic, neo-Nazi, chauvinistic, racist and other similar facilities. The spread is particularly contributed to the development of modems, the Internet and other telecommunications facilities. The perpetrators are mostly people who do not do anything other than criminal activity. Simple and accessible modern information equipment and technology used to streamline managing their illegal activities. For committing this crime is not necessary to have any special technical knowledge. 3. 8. Other Abuse Under other abuses include all those "traditional" crimes that can be committed with the help of modern computer technology. It is its wide use led to a series of new offenses which is easier to carry out if it is used in the commission of these modern information technology. For example, it may be compulsion, threats, theft, international terrorism, blackmail, extortion, unauthorized rendering of medical, trafficking etc. 4. Extended criminal offense Given the fact that sometimes there computerrelated criminal offenses have the character of a permanent criminal occupations, ie. Serve their perpetrators as a very important (and sometimes even the main) source of maintenance, are often faced with situations where the same person __________________________________________________________ Si iša Fra jić, a d Se yo Silae several times repeated the same thing criminal offenses against computer systems, programs and data or created a number of those same. This leads to the field of prolonged criminal act as a type of apparent real concurrence, a fundamental question in the context of this rather wide issues could be formulated as follows: under what circumstances each of the taken illegal actions, but realizes all the essential elements of a criminal offense, does not require an independent legal assessment, but a whole series of these actions can be legally labeled as a single extended criminal offense. Or, in other words, what is the scope of application of the real-homogenous concurrence? During more than two centuries, extended criminal offense remains one of the most complicated and the most controversial criminal institutions in civil law countries. Leaving aside the many discussions on the principled criminalpolitical justification and legal constructs and the content of its individual elements, we can say that the European criminal legal doctrine, there are two basic approaches to defining this term. According to objective concepts, crucial for the construction of extended criminal offense (except, of course, the identity of the perpetrators) are the identity or similarity of crime and their temporal and spatial correlation; often draws attention to some additional (variable, variable) conditions for the existence of extended criminal offense, which are also largely objective character: the identity of the injured rights, the identity of the victim, sameness object works, using the same situation or the same permanent relationship, and so on. In contrast, supporters of the subjective concept of extended criminal offense argue that the most important cohesive element that justifies the merging of a number of the same or the same (and sometimes even variety) offenses into one of the subjective side, and this is a unique intent (unique intention), or a single negligence, while all the objective features of extended criminal offense only externals events and unique guilt based on unique motivation of criminal behavior, and this last one stems from a need, that the perpetrator tends to settle, which is the goal of its activities (see Silaev 2013). Deeper analysis of these two approaches reveals their fundamental difference in the understanding of the nature of 39 extended criminal offense: the point of view of objective theory, it is a single criminal act only in law, but not in the natural sense, ie. It is one legal fiction whose purpose is to avoiding application of the concourse works processual economy; As for the subjective theory, their core consists in saying that the real concurrence of the extended criminal offense are two absolutely different phenomenons, not only in terms of their legal form, but essentially, or by its socialpsychological characteristics (see Silaev 2014). It should be noted that in the penal systems of different countries in Central and Eastern Europe the question of extended criminal offense is handled in a different way. For example, in Russia and other former Soviet republics jurisprudence mostly opted for a mixed theory in which the unique intent is considered mandatory and very important element of the extended criminal offense, although it requires certain objective connection between actions that are included in its composition. In Poland, the legislator is firmly confined the extended criminal offense (prгestępstаo ciąРła) as a form of a single criminal offense and the extension of criminal offenses (ciąР prгestępstаo) as a form of merger of the real: the two legal figures have almost identical objective characteristics, but generally vary according to the subjective content; namely, the existence of extended criminal offense requires a unique intent (z góry poагiętв гamiar), аСile its absence turns into a series of unlawful conduct in the extension of criminal offenses (Art. 12 and 91 of the Polish Criminal Code) (see Budyn-Kulik et al 2012; see Kardas 1999). In contrast, as a result of the last reform of Croatian criminal law, there was no legal definition of extended criminal offense, which found reflection only objective elements of the institution, while the unique intention is not used (Art. 52 of the Croatian Criminal Code) (see Turković and Maršavelski (ur/eds) 2013). As for Germany, the construction of extended criminal offense, there was almost deserted since the early 1990s (see Joecks 2012). Of course, these differences in determining the overall idea of extended criminal offense directly affecting the legal assessment of criminal activities related to computer technology. 40 Criminal law aspects of computer crime ____________________________________________________ Take, as an example, software piracy. Leaving aside a number of issues concerning the relationship between criminal offenses of unauthorized use of copyright work (which belong to, among other things, computer programs), and changes or damage to computer data, to draw your attention only on doubts about the application of the provisions on realhomogenous concurrence. Suppose someone X engaged in illegal installation of software on other computers, thereby removing copy protection, and consumers pay for such services (of course, such a price is significantly lower than the licensed programs). If we accept the objective understanding of extended criminal offense, then, to all such activities were carried out on a limited territory for several days or even weeks could legally be marked as one extended criminal offense. It would be another solution, if we are committed to understanding and legal figures from a subjective point of view, it would have to establish that perpetrator, before you performed the first illegal installation, decided to carry out a full range of these identical actions (in the Russian judicial practice as a uniting factor in such cases often serves the identity of the consumer of such equipment and the unity of its agreement with the perpetrator, as well as a certain unity preparatory actions). The same situation is with computer fraud. According to the objective theory, the existence of extended criminal offense may be enough, for example, that the perpetrator was purchased for illegal gain performs a series of time-related actions, and thereby leverages the same computer equipment and the same program that he provide unauthorized access to computer data and their modification. It will be a different solution based on a subjective theory: then we have to establish that the perpetrator is taking a series of fraudulent acts, having a more or less detail on the overall objective that must be objectified in a unique result of all these undertakings, otherwise there would be a concurrence of several independent crimes of computer fraud. Also note that in the post Soviet jurisprudence, when it comes to the offense in question "pillage" (ie, theft, robbery, robbery, fraud, embezzlement and all forms of fraud), great importance always be accorded, in addition, union sources criminal enrichment. All of the above shows once again, how utopian aspirations for the creation of some universal mechanisms of criminal justice confronting computer-related crime: the unification of criminal anti-social reactions to the appearance of not enough introducing identical legal descriptions of relevant offenses in national penal codes, and even prescribing the same penalties as many provisions of the general part of criminal law are also of great importance for the qualification of socially dangerous acts, including those in the sphere of computer information. In addition, there are a lot of question marks human criminal behaviors that are only partially regulated by the legislature, and developed case law. It is therefore not realistic to expect that cyber crime will receive from the authorized body the same answer in all parts of the world. 5. Conclusion Computer crime is a kind of inevitable active participant in the exponential development of information or computer technology especially in the digitized electronic networks in all areas of life. It differs from the known forms of crime because of his common facility incorporeal digitized data, computer main tool of unlawful activity or purpose of his execution, and the invisible computer to do a specific area of action at a distance that in earlier periods was virtually unthinkable. With the development of information society, computer crime takes on more complex forms and expands to the other, "traditional" areas of crime. Computer crime today is not a unique phenomenon with clearly visible manifestations through which it manifests itself, a specific profile of the perpetrator and the ways in which it is executed. This gives it a new dimension, makes it much more dangerous, and its consequences more harmful and farreaching. Therefore, it is modern society must oppose with all available methods and means, including legal protection is certainly one of the most important. __________________________________________________________ Si iša Fra jić, a d Se yo Silae References [1] Krapac, Davor: „Kompjuterski kriminalitet“ (Computer criminality), Pravni fakultet Sveučilišta u ZaРrebu, Zagreb, 1992. [2] Šimundić, Slavko; Franjić, Siniša: „Računalni kriminalitet“ (Computer criminalitв), Sveučilište u Splitu – Pravni fakultet, Split, Hrvatska, 2009. 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