part 2
Cybercrime: Conceptual Problems
An conceptual stumbling block in the legal analysis of cybercrime is the absence of any definition which commands consensus. Domestically, Congress has not adopted a formal definition for cybercrime. Instead, it has opted for an enumeration of acts constitutive of cybercrime. The enumeration is found in the penal provisions of the E-commerce Act.
Elsewhere, the US Department of Justice broadly defines computer crime as "any violations of criminal law that involve a knowledge of computer technology for their perpetration, investigation, or prosecution." A narrower definition has not been found feasible. On the contrary, it has been observed that:
Because of the diversity of computer-related offenses, a narrower definition would not be adequate. While the term "computer crime" includes traditional crimes committed with the use of a computer, the rapid emergence of computer technologies and the exponential expansion of the Internet have spawned a variety of new, technology-specific criminal behaviors that must also be included in the category of "computer crimes." As a result, there has been a dramatic increase in specialized legislation to combat these new criminal behaviors.
O’Neill makes a rather graphic characterization:
Although the fundamental nature of offenses being committed in this manner are really no different from garden variety thefts, copyright violations, securities frauds, or invasions of privacy, what makes cybercrime unique is that the means of undertaking the criminal conduct is substantially different from dropping into the local liquor store, hitting the proprietor over the head, and running away with the till…
In lieu of a formal definition, three distinct categories have been adopted to classify acts which constitute cybercrime. These categories either treat the computer as the object of a crime, the subject of a crime or an instrumentality to commit a crime.
In the first category, the computer’s hardware or software is the subject of the offense. In most instances, it involves the theft of the unit itself or the data stored within the unit. Under Philippine law, the actual taking of the unit may either be robbery or theft depending upon the circumstances surrounding the taking. Thus, it comes outside the purview of cybercrime and is properly a felony under the Revised Penal Code. This aspect fits the traditional notion of crime and presents few new issues for criminal law.
The same line of analysis could very well be applied to the third category, where the computer is used as an instrumentality of a crime. The issues remain basically the same and it readily appears to be immaterial that the crime was committed using a computer.
An conceptual stumbling block in the legal analysis of cybercrime is the absence of any definition which commands consensus. Domestically, Congress has not adopted a formal definition for cybercrime. Instead, it has opted for an enumeration of acts constitutive of cybercrime. The enumeration is found in the penal provisions of the E-commerce Act.
Elsewhere, the US Department of Justice broadly defines computer crime as "any violations of criminal law that involve a knowledge of computer technology for their perpetration, investigation, or prosecution." A narrower definition has not been found feasible. On the contrary, it has been observed that:
Because of the diversity of computer-related offenses, a narrower definition would not be adequate. While the term "computer crime" includes traditional crimes committed with the use of a computer, the rapid emergence of computer technologies and the exponential expansion of the Internet have spawned a variety of new, technology-specific criminal behaviors that must also be included in the category of "computer crimes." As a result, there has been a dramatic increase in specialized legislation to combat these new criminal behaviors.
O’Neill makes a rather graphic characterization:
Although the fundamental nature of offenses being committed in this manner are really no different from garden variety thefts, copyright violations, securities frauds, or invasions of privacy, what makes cybercrime unique is that the means of undertaking the criminal conduct is substantially different from dropping into the local liquor store, hitting the proprietor over the head, and running away with the till…
In lieu of a formal definition, three distinct categories have been adopted to classify acts which constitute cybercrime. These categories either treat the computer as the object of a crime, the subject of a crime or an instrumentality to commit a crime.
In the first category, the computer’s hardware or software is the subject of the offense. In most instances, it involves the theft of the unit itself or the data stored within the unit. Under Philippine law, the actual taking of the unit may either be robbery or theft depending upon the circumstances surrounding the taking. Thus, it comes outside the purview of cybercrime and is properly a felony under the Revised Penal Code. This aspect fits the traditional notion of crime and presents few new issues for criminal law.
The same line of analysis could very well be applied to the third category, where the computer is used as an instrumentality of a crime. The issues remain basically the same and it readily appears to be immaterial that the crime was committed using a computer.
posted by n. gadrinab
No comments:
Post a Comment