Computer Crime – Anti-cyber-crime Legislation
Approximately 40 federal statutes govern the prosecution of computer-related crimes. Among the most prominent are the Copyright Act, the National Stolen Property Act, mail and wire fraud statutes, the Electronic Communications Privacy Act, the Communications Decency Act of 1996, the Child Pornography Prevention Act, and the Child Pornography Prevention Act of 1996.
Congress recognized computer-related crimes as discrete federal offenses with the 1984 passage of the Counterfeit Access Device and Computer Fraud and Abuse Law, which was revised four times in the following decade. This law narrowly protected classified U.S. defense and foreign relations information, files of financial institutions and consumer reporting agencies, and access to governmental computers.
Congress enacted another major anti-cyber-crime law in 1996, the National Information Infrastructure Protection Act (NIIPA). NIIPA broadened the scope of protection offered by the Computer Fraud and Abuse Law by covering all computers attached to the Internet and, therefore all computers used in interstate commerce. It also criminalized all unauthorized access of computer files in order to transmit classified government information; intentional access of U.S. department or agency non-public computers without permission; and accessing protected computers, without or beyond authorization, to defraud and obtain something of value.
The Copyright Act covers computer-related copyright infractions, such as software piracy. The act provides criminal remedies for any intentional infringement of a copyright perpetrated for commercial advantage or private financial gain. Given the ease and anonymity of nearly identical reproductions made of online intellectual property, such as software, digitized text, and audio and visual files—and the ability to disseminate those copies worldwide—many see copyright as an increasingly costly cyber-crime offense. Traditional exceptions to copyright privileges, such as “fair use” and the “right of first sale,” may be eroded under evolving copyright protection laws in cyberspace. Digital intellectual property rights also are regulated by the No Electronic Theft Act of 1996, which criminalizes the electronic reproduction and dissemination of copyrighted material.
The National Stolen Property Act (NSPA) has been extended to cover the fraudulent transfer of funds online, as well as the theft of tangible hardware. The courts have determined that federal mail and wire fraud statutes, which outlaw the use of interstate wire communications or the mail to defraud persons of money or property, also can apply to computer-aided theft. However, the case law on this point is still evolving.
One of the most controversial areas of cyber law, the extent of online privacy protection, was addressed in the Electronic Communications Privacy Act of 1986 (ECPA). ECPA has been utilized to prosecute computer hacking, since it strengthens the privacy rights of computer users and permits law enforcement to use electronic surveillance when investigating computer crimes. ECPA also has been used in cases of the theft of encrypted, satellite-transmitted television broadcasts.
The problem of online child pornography spawned several laws intended to block the online transmission of pornographic material to minors. Congress passed the Communications Decency Act of 1996 (CDA, also Title V of the Telecommunications Act of 1996), which prohibited the transmission of “indecent,” “patently offensive,” and “obscene” material to minors over the Internet. However, the Supreme Court invalidated certain sections of the DCA in Reno v. American Civil Liberties Union, stating that they infringed the First Amendment protection of free speech.
In response, Congress passed the Child Online Protection Act, which penalized any commercial Web site that allowed children to access content that was “harmful to minors.” By summer 2001, this act was challenged on First Amendment grounds in a U.S. circuit court. The Internet’s role in the production and dissemination of child pornography also is addressed by the Child Pornography Prevention Act of 1996 (CPPA), intended to criminalize the production, distribution, and reception of computer-generated, sexual images of children. The CPPA has survived constitutional challenges in court.
Despite the plethora of anti-cyber-crime laws, few cases have been adjudicated under them. This is due to the reluctance of victims to lodge suits, the difficulty of gathering evidence and identifying perpetrators in cyberspace, the desire of many victims to pursue matters privately, and the fact that many such incidents were prosecuted under state, rather than federal, laws. Prosecution of cyber-crime raises several difficult constitutional dilemmas. Among these are Fourth Amendment concerns about the legality of the search and seizure of computer records and software, First Amendment concerns about freedom of speech, and general questions about the extent of citizens’ online privacy.
Since 1978, the states also have addressed cyber-crimes in their own legislation, with Arizona and Florida being the first to do so. Every state has some such legislation on the books. The states have taken the lead in specifically addressing some forms of cyber-crime, such as online harassment. However, the expansion of state computer crime legislation also generates conflicts between federal and state authorities regarding cyber-crime prosecution.