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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Essay on Laws against Cybercrime

Because of the seriousness of the problem of cybercrime, there are already a number of laws that deal with cybercrime. Each of the countries provides for its own definition of what cybercrime or computer-related crimes are. These countries also provide for their penalties in case of violation of these crimes. In France, for instance, the laws which regulate cybercrimes are scattered in many provisions of its Penal Code and are included in different sections such as credit card offenses, unauthorized access to automated data processing system, and violation of personal rights resulting from computer files or processes.

In the United Kingdom, the Computer Misuse Act of 1990 deals with a number of computer-related crimes and provides for the penalties. In India, its law against cybercrime is provided for under the Information Technology (Amendment) Act 2008. The United States, on the other hand, has one of the most cybercrime legislations in the world. Among these federal legislations 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. In addition, the individual states in the United States also have enacted a number of statutes that deal with computer crime.

Chinese Laws on Cybercrimes

            Articles 285, 286 and 287 of the Criminal Law of the People’s Republic of China and the Decision of the Standing Committee of the National People’s Congress on Ensuring Internet Security are the governing legislations on cybercrime in China. (Pi Yong)   Under Art 285 and 286 of the said law, infringing of the security of computer information is punishable which includes the crimes of illegally invading computer information system and the destroying and damaging of computer information system.  These two provisions are similar to the provision on illegal access to a computer system which is punishable under the Convention on Cybercrime.  Art 287 and the Decision of the Standing Committee prohibit the use of compute or internet that brings serious damage to the society. 

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Malaysia Laws on Cybercrime

The relevant provision under Malaysian law on cybercrime is Act 563 of the Computer Crimes Act of 1997.  Malaysian law punishes the following cybercrimes: unauthorized access to computer material; unauthorized access with intent to commit or facilitate the commission of further offense; unauthorized modification of the contents of any computer; and wrongful communication.

Malaysian law also clearly provides for the extraterritorial application of its cybercrime law.  Act 563 provides that its provisions shall be applicable to any person regardless of his nationality or citizenship, regardless if the effect is within or outside Malaysia, as if the crime was committed within the territory of Malaysia provided that the computer, program or data was in Malaysia or capable of being connected to or sent or used by or with a computer in Malaysia.

Japan Laws on Cybercrime

The relevant provision under Japanese law on cybercrime is the Unauthorized Computer Access (UCA) Law.  Under the law, the unlawful use, entry into, and seizure of digital assets are prohibited. 

The Penal Code of Japan which was enacted in 1907 and amended in 1987 also punishes the following activities: illegal production and destruction of an electromagnetic record, interference with business transaction by a computer system, and computer fraud. (Takato Natsui, 2003, p.6) The said law defines an electromagnetic record as the record made by any electronic method, magnetic method or other methods unrecognizable with human perception and provided for the use of data processing in computer system.

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Essay on International Agreements against Cybercrimes

There are a number of agreements that purport to deal with cybercrimes. These international agreements are manifestations of the global community’s response to the global challenge of cybercrime. One of these agreements is the United Nations Convention on Transnational Organized Crime. While it does not directly state that cybercrime is included within its scope, in view of the transnational nature of organized crime and its close association with organized crime, the UNTOC may be referred to as basis for prosecution since cybercrime is covered in this agreement by implication.

Council of Europe Cybercrime Convention

Another agreement is the Council of Europe Cybercrime Convention. The Cybercrime Convention was signed in 2001 by the United States and 29 other countries in Budapest, Hungary.  The multilateral treaty which took effect in July 2004 was the first treaty signed to address the growing problem of cybercrime. The main goal of the Cybercrime Convention is to provide for a common criminal policy by harmonizing national laws with the aim of protecting the society against cybercrime. (Henrik W.K. Kaspersen, 2009)

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At the first international treaty on crimes committed via the Internet and other computer networks dealing with infringements of copyright, computer-related fraud, child pornography and other violations of network security, it commits signatories to prosecute the violators of computer-related crimes with a firm resolve.  It is the goal of the signatories to the treaty to end the cybercriminals’ feeling of invincibility by requiring sanctions and making cybercrimes and other computer-related crimes an extraditable offense and by reducing the number of countries that the cybercriminals can avoid prosecution.

The United States was one of the thirty (30) counties that signed the Convention on November 23, 2001 in Budapest.  The United States also ratified the Convention on August 3, 2006.  As of 2006, there have been forty three (43) countries that signed on the Convention. 

Towards this end, the contracting parties to the treaty are required to define criminal offenses and sanctions under their own domestic laws for the four categories of computer-related crimes such as fraud and forgery, child pornography, copyright infringements and security breaches. The treaty also requires the signatories to establish domestic procedures for detecting, investigating and prosecuting computer crimes and collecting electronic evidence and to establish a rapid and effective system of international cooperation.

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