Adapting the Law to the Online Environment Essay

Formulating unique conception of the Web in Weaving the Web Berners-Lee emphasized that the bearingion was to create a formation with one fundamental attri ande it had to be all decentralized. In the vision of Berners-Lee That would be the only way a new person somewhere could start to use it the Web with disclose asking for rile from anyone else1. In the initial years of the Webs functioning, Berner-Lees ideal of a highly decentralized universal system has been shared by tens of millions of passel around theworld who have appreciated and marveled at an invention that sees it unexpectedly easy for anyone with a data processor to connect with anyone else with a computer, anywhere in the world, and to submit and send information almost at will. But the profits and the Web have also moved to the center of attention for governments, business leaders, virtueyers and judges, police forces and host establishments, and anyone else dependent on the rule of law and authority structu res in modern society.This is a issue of the ability and tendency of Internet users to simply skirt or leap over many of the rules and institutions designed to maintain order in the pre- Internet world. Previously designed rules and legal structures enacted for slower-paced, comparatively public tangible transactions in a world rimmed everywhere with borders (local, provincial, national) suddenly were challenged as never onward when the Internet made it physically conceivable to carry out transactions of almost any kind in a manner simultaneously immediate, anonymous, inexpensive, and seemingly borderless.However, the process of certain democratization, over barbarousization and simply lazier-affair went beyond predictable limits earnings identity stealth, credit card blind, controversies with gambling and online porn reveal significant need to adapt the law to online environment, to analyze the specifics of cyber crimes and to create effective regulatory norms.traditional Cr ime and Cyber Crime Defining BoundariesFrom the primary perspective, the Internet imitates and, in most cases, runs parallel to what is often happening in normal life, accordingly, it is no wonder that the law had to take account of this new parallel of real life. Hence the frequent appeals for cyberlaw or cyberspace law. Simultaneously, the imitation of life by the Internet does not completely transcend existing forms of activities in their entirety. Thus while electronic forms of information are the hallmark of the Internet and tend to undermine tangible media, or yet render them obsolete, prior forms of information may coexist a extensiveside them, albeit uneasily and suffering permanent corrosion. In so far as it is not likely to divine the extent to which the Net will generate parallel or independent forms of drill, the development of the appropriate law cannot be predictable.One has to determine in each specific sphere of activity how far the parallels go and how big or sm all the change over the normal may have been before working out the legal response. Consequently, the lack of time or resources cannot be the main reasons for the non-development of Internet law, as Edwards and Waelde suggest2, although they recognize, somewhat indirectly that the Internet is still growth and so must the Internet law. Edwards and Waelde view Internet Law as being a result of (the usual) adaptation process that the law undergoes to catch up with new technological phenomena.They regard Internet Law as a necessity, contrary to the core pragmatic perception of those they refer to as looking upon the Internet as law-free.3 And although the principle of Internet content, transactions and activities seems to be logical and self-evident, the problems start appearing from the very definition of cyber crime.Blacks Law Dictionary places a crime as a social harm that the law makes punishable the breach of a legal duty treated as the subject-matter of a criminal proceeding.4 Anglo-American criminal law has for centuries possessed a set of definitions of crimes that encompass the varied categories of social harms humans can trim on one another, for instance homicide, rape, robbery, arson, vandalism, fraud, child abuse, and so on According to Susan Brenner, criminal law does not typically differentiate offenses based upon the instrumentalities that are used in their commission we generally do not, for example, divide homicide into murder by gun, murder by poison, murder by strangulation and so on.5As Brenner points out, criminal law does treat the use of certain instrumentalities as aggravating factors, the use of which can result in an enhanced sentence upon conviction this is how criminal law generally deals with using a firearm or other dangerous instrumentality in the delegating of a crime.6 This approach could, perhaps, have been taken with regard to cyber crime we could simply define hacking as a type of trespass, analogous to real-world trespass . The crime of real-world trespass is gaining approach shot to a physical space a building or a parcel of land without authorization. We could have pursued hacking in an analogous fashion, perhaps prosecuting it as trespass and then characterizing the use of computer technology as an aggravating factor.7However, that is not the approach the law has taken and is taking to the use of computer technology to inflict social harms. What is emerging is a division between traditional crimes (trespass, burglary, theft, stalking, etc.) and cyber crimes. The latter encompass the use of computer technology to commit either (a) social harms that have already been identify and outlawed generically (trespass, burglary, theft, stalking, etc.) or (b) new types of social harm that do not fall into traditional crime categories.It is necessary to adopt cyber crime-specific laws for the first class of conduct be lay down, as Brennans hacking-trespass example illustrates, computer technology can be u sed to commit social harms in ways that do not fit comfortably into our existing offense categories. another(prenominal) Brennans example of a denial of service attack8 simply eludes conventional criminal law it is not theft it is not extortion it is not blackmail it is not vandalism or trespassing or any other crime that has so far been defined. We must, therefore, define new cyber crimes to encompass denial of service attacks and other new varieties of criminal activity.In conceptualizing the varieties of cyber crime, it is helpful to divide them into three categories offered by Marc Goodman crimes in which the computer is the rank of the criminal activity, crimes in which the computer is a tool used to commit the crime, and crimes in which the use of the computer is an incidental aspect of the commission of the crime.9 When a computer is the target of criminal activity, the perpetrator attacks an innocent users computer or computer system either by gaining unlawful plan of atta ck to it or by bombarding it from outside.Cybercrimes that fall into this cate sanguineous include simple hacking (gaining access to a computer system or part of a computer system without authorization) and aggravated hacking (gaining access to a computer system or part of a computer system without authorization for the purpose of committing a crime such as feigning or altering information in the system). The target cybercrimes also include denial of service attacks and the dissemination of viruses, worms and other types of malware. The cyber crimes in this category tend to be new crimes and therefore generally require new legislation.A computer or computer system can also be the instrument that is used to commit what is essentially a traditional crime. Cybercrimes in which a computer is the tool used to carry out criminal activity include online fraud, theft, embezzlement, stalking and harassment, forgery, obstruction of justice and the creation or dissemination of child porn. T hese are conventional crimes, but it may be difficult to absorb online versions of these crimes using existing substantive law a jurisdictions theft statute may not, for example, encompass a theft of intangible property when the theft consists of copying the property, instead of appropriating it entirely. In State v. Schwartz, Oregon State of Appeal held that by copying the passwords, defendant stripped them of their value.10 Jurisdictions may therefore find it necessary to amend their existing substantive criminal law to ensure that it can be used against these cyber crime variants of traditional crimes.The last category consists of cyber crimes in which the use of a computer or computer system is incidental to the commission of the crime. This category includes, for example, instances in which a murderer uses a computer to plan a murder or lure the victim to the murder scene it can also include a blackmailers using a computer to pull through extortion letters to his victim or a drug dealers using a computer to monitor his sales agreements, inventory and profits. Here, the computer is merely a source of evidence and new substantive criminal legislation is generally not needed. The cases in this category can, however, require new law to resolve procedural issues such as the processes used in gathering evidence of cyber crimes.The basic national cyber crime provision is 18 U.S. Code 1030 among other things, it criminalizes hacking, cracking, computer fraud and the dissemination of viruses, worms and other types of malware. The statute accomplishes this by directing its prohibitions at conduct that targets a protected computer and then defining protected computer as a computer encompassed by federal jurisdiction.11 Section 1030 defined a protected computer as either (a) a computer used unaccompanied by a financial institution or the federal government or used nonexclusively by a financial institution or the federal government if the conduct constituting the crime affects its use by the financial institution or federal government or (b) a computer used in interstate or remote commerce or communication.12 The notion of basing the statutes prohibitions on conduct directed at a protected computer was introduced when 1030 was amended in 1996 until then, it criminalized conduct that was directed at federal interest computers, i.e., computers used by the federal government or located in more than one state.13The 1996 amendment broadened 1030s reach it now encompasses conduct directed at any computer connected to the Internet. In 2001, the Patriot Act amended 1030 to make it clear that the statute can be used to prosecute criminal conduct which occurred outside the United States, a position the Department of Justice had long taken, for instance in case United States v. Ivanov. The Patriot Act expanded the definition of a protected computer to include computers used in interstate or foreign commerce that are located outside the United States if they are used in a manner that affects interstate or foreign commerce or communication of the United States.14Problematic Aspects Copyright, Child Pornography, Identity Fraud in InternetIn order to address the problems in regulation of online environment more effectively, this paper aims to focus on several most problematic aspects of the issue copyright violations, child pornography and identity theft or credit card fraud. Defined by Culberg, copyright is a legal device giving the author (or holder of the copyright) the exclusive right to falsify the reproduction of his or her intellectual creation for a specific period of time.15 Copyright law in the United States derives from the U.S. Constitution and is therefore exclusively federal states do not have the authority to legislate in this area.16 Defenses to a charge of criminal copyright infringement are, first, that the offense cannot be prosecuted because the five year statute of limitations has run.17Other defenses are the first sale doctrine and an argument that the defendant did not act willfully. The first sale doctrine lets one who purchased a copyrighted work freely distribute the copy she bought.18 Under the doctrine, however, the purchaser can only distribute the copy she bought she cannot copy the purchased item and distribute the copies.19 Since most computer bundle is distributed through licensing agreements, the first sale doctrine typically does not apply when someone is charged with software piracy.20 With regard to the claim that a defendant did not act willfully, there is some ambiguity as what is required to show willfulness. Courts disagree as to whether it requires an intent to copy or intent to infringe.21The newest weapon in the federal arsenal of copyright statutes is the Digital Millennium Copyright Act, which added two sections to title 17 of the U.S. Code. Section 1201 makes it unlawful to circumvent measures used to protect copyrighted works, while 1202 makes it unl awful to tamper with copyright management information. Another new section, 17 U.S. Code 1204, creates criminal penalties for violating either sections 1201 or 1202 of the DMCA. The first criminal prosecution under the DMCA was filed in 2001 against Dmitry Sklyarov, a Russian citizen, and his employer, Elcomsoft, Ltd.22 They were charged with violating 17 U.S. Code 1201(b) (l) (A), by trafficking in technology designed to circumvent the rights of a copyright owner, and with violating 17 U.S. Code 1201(b) (l) (C), by trafficking in technology marketed for use in circumventing technology that protects the rights of a copyright owner.Another area that is a high priority in federal computer crime prosecutions is child pornography. To understand the current state of the law outlawing child pornography, it is necessary to understand the showtime Amendment, which states, in part, that Congress is to make no law abridging the granting immunity of destination. The U.S. Supreme Court ha s interpreted this part of the First Amendment as prohibiting the criminalization of any but a very few limited categories of speech The First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.23From the critical as well statistical perspective, child pornography appears a relatively recent addition to the list. However, the rise of computer technology raised concerns about virtual child pornography, i.e., pornography created using morphed or other artificial images of children, and in 1996 Congress pick out the Child Pornography Prevention Act, codified as 18 U.S. Code 2251. This Act extended the prohibitions on manufacturing, possessing and distributing child pornography to encompass pornography that featured not only real children but what appeared to be a real child.24 In 2001, a coalition of free speech advocates challenged these provisions of the federal child pornography statutes they argued that because no real children are harmed in the creation of virtual child pornography, it does not fall under a category of speech that cannot constitutionally be criminalized.25When the case was before the Supreme Court, the Department of Justice argued that virtual child pornography can be criminalized because (a) pedophiles use it to seduce children into versed acts and (b) it stimulates pedophiles into molesting children.26 The Supreme Court rejected these arguments and held that the prohibition of virtual child pornography violated the First Amendment, so the statutory provisions at issue were unconstitutional and unenforceable.