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Sunday, September 18, 2011

Essay on United States Laws against Cybercrimes

Before prosecution against any individual or organized criminal group may proceed, the court must have jurisdiction over the crime involved.  One of the basic principles of jurisdiction is the concept of territoriality.   As a rule, the court has declared that there is a presumption that the laws of the United States do not have extraterritorial application. (United States v. Cotton, 471 F.2d 744) This is due to the necessity of avoiding conflicts with foreign laws which may result from the enactment of laws with extraterritorial application.

In the past few decades, however, Congress has passed laws that can support the exercise of criminal jurisdiction even beyond its territory.  Indeed, it is beyond question that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.  For instance, Section 1029 of the USA Patriot was purposely revised by Congress with the intention of providing extraterritorial jurisdiction for the acts covered by this section, to wit:
(h) Any person who, outside the jurisdiction of the United States, engages in any act that, if committed within the jurisdiction of the United States, would constitute an offense under subsection (a) or (b) of this section, shall be subject to the fines, penalties, imprisonment, and forfeiture provided in this title if—
(1) the offense involves an access device issued, owned, managed, or controlled by a financial institution, account issuer, credit card system member, or other entity within the jurisdiction of the United States; and
(2) the person transports, delivers, conveys, transfers to or through, or otherwise stores, secrets, or holds within the jurisdiction of the United States, any article used to assist in the commission of the offense or the proceeds of such offense or property derived therefrom. (18 U.S.C. § 1029(h), USA Patriot Act)

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State laws have also been passed providing for extraterritorial application of the state’s criminal laws. These statutes enable one state to assert jurisdiction for violation of its own laws even when the crime is committed outside of the territory of the state.  In North Carolina, for instance, cyberstalking is committed even when the person who sent electronic mail or communication is outside North Carolina. Under its law, “Any offense under this section committed by the use of electronic mail or electronic communication may be deemed to have been committed where the electronic mail or electronic communication was originally sent, originally received in this State, or first viewed by any person in this State.” [N.C. Gen. Stat. [section] 14-453.2 (2002)]. Pursuant to this law, a certain Laurence Barnett of Georgia was arrested for cyberstalking when he made the trip to North Carolina to see a woman after he viewed her in Facebook and gathered information about her online.  He was able to retrieve enough information about the woman and located her in Cleveland County, North Carolina. (“Police: Georgia man stalked local Facebook user, captured inside abandoned home”, 2009)

A similar law can be found in Arkansas which grants it jurisdiction to prosecute computer crimes committed outside of its jurisdiction. It states that "a person is subject to prosecution in this state for any conduct proscribed by this subchapter, if the transmission that constitutes the offense either originates in this state or is received in this state." Ark. Code Ann. [section] 5-27-606 (2003).

The recent case of Olez Zezev highlights the extraterritorial application of domestic laws of the United States.  It appears that in March 2000 Zezev manipulated Bloomberg’s software to bypass Bloomberg’s security system for the purpose of gaining unauthorized access to Bloomberg’s computer system. Zezev then illegally entered Bloomberg’s computer system and accessed different accounts including the accounts of Michael Bloomberg and his employees. He also copied internal information from Bloomberg that can be accessed only by Bloomberg’s employees. Subsequently, Zezev sent Bloomberg an email message from Kazakhstan under the alias Alex where he attached various screens which prove his ability to access the account of Bloomberg. He then threatened Bloomberg saying that unless Bloomberg sends him $200,000 he will disclose to the media and Bloomberg’s customers what he had done so as to destroy his reputation.

In response, Bloomberg sought the help of FBI agents which instructed him to send emails to Zezev saying that if he wanted money he would have to meet with Michael Bloomberg in United Kingdom and explain to them how he was able to break into Bloomberg’s system.  When they met in United Kingdom, Zezev was arrested. He was subsequently indicted. In this case, the email was sent by Zezev from his home country in Kazakhstan. Yet the United States exercised its jurisdiction over the case.

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