Thursday, December 16, 2004

Computer crime v. using a computer in the midst of a crime

Kerr made a posting that reflects a fundamental misunderstanding (IMHO, rather than a distinction) of computer crime. First, one can divide computer crimes based on what role the computer played in committing the crime. A computer can hold illicit receipts, can create fake ids, can transmit child porn, but all of these things have real world, analog substitutes. What is different here is that there would be no crime if a computer was not used. The computer was not a device for facilitating the crime, but more like a tool for committing a crime. In the closest analog comparison, let's say Lowe's runs a radio station and communicates all it's billing information over the air. Why anybody with a radio receiver would be able to pick it up. And that's exactly what these two guys did (yes, they installed a sniffer, but think of that as tape recording the radio when you go to sleep). Although eavesdropping was around at common law, it is hard for me to see John Bull hauled into the Tower for 9 years when he heard someone at the pub rattle of 6 account numbers. These two are being punished for being more intelligent than a normal criminal and using 'advanced' technology to assist in their crime.

Moving on to the issue of damages. I have never seen a computer crime indictment without BULLSHIT filled in the amount line. I realize they pled to 'doing $2.5 mil' which qualified them for a long sentence under the Federal Sentencing Guidelines, but it's worth noting that they never actually did anything malicious with the numbers. Of course, a jury would be entitled to make the inference as to their ill intent. I'm not arguing that they should be set free, I'm just saying they really didn't cause any real harm. (Just for fun I would like to see if Lowe's could file a tort claim (w/o using the CFAA), I'm guessing it would quickly be dismissed).

And this brings me to my final point. No one was physically or mentally injured, no money was stolen, no one's safety was put at risk; yet these guys get 9 years. That's the real difference between a scum bag using a computer to sell child porn, there is an actual child whose life is gravely affected. Money being exchanged during the commission of a crime, yes because incentive crime actually causes harm to somebody. Even making a fake id has a tenuous connection to preventing physical injury. Here they get sent up for having some 60 digits.

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