Criminal legal description of computer-facilitated crimes
Date: April 29, 2005Source: Computer Crime Research Center
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... as it is hard to prove the intent of the computer criminal during investigation of circumstances of intervention (e.g. a person that usually uses e-mail in the Internet, probably not deliberately but also owing to carelessness, may distribute computer viruses).
Theft, assignment, extortion of computer information or its abstraction by swindle or official position abusing (referring to the Article 362) concerns only "computer" crimes. They make the majority among files of offences in sphere of computers, systems and networks.
The definition of “computer information”, introduced by the legislation, is very important. In our opinion, it is necessary to understand it as an aggregate of all identified and owned date, used in computers, systems and networks. The identified information is information fixed in the machine carrier with essential properties allowing to identify it.
The Article 363 of the Criminal Code of Ukraine establishes the responsibility for violation of operation rules of automated computers, systems and networks performed by the person responsible for their operation if it has entailed theft, distortion or destruction of computer information, means of its protection, illegal copying and essential infringement of operation of such computers, systems and networks.
This Article protects interests of the owner of automated computer systems, concerning their correct operation.
The given norm of the Criminal Code, naturally, does not contain concrete technical requirements. It refers to departmental instructions and the rules establishing the operating procedure and which should be set specially by the authorized person and be brought to users. Application of the specified Article to the Internet is impossible; its effect applies only to local networks of organizations.
An investigatory relation should be established between the fact of violation of operation rules of automated computers and the fact of caused essential harm. It should be completely proved, that consequences come exactly from violations of operation rules.
Determining of essential harm provided for by the Article 361 is an evaluating process. The harm is determined by court in each concrete case, in view of all circumstances, however it is obvious, that essential harm should be less significant, rather than essential consequences.
A criminal realizes that he is breaking operation rules; he foresees an opportunity and inevitability of illegal influence on information and causing essential harm or meaningly wishes causing such harm. Such action is punished by deprivation of the right to occupy certain positions or by engaging in certain work for the term up to five years or correctional work for the term up to two years.
Part 1 of the Article 363 of the Criminal Code is complicated for interpretation of the contents. Grammatical, logical and system structural analysis of all the Article allows to say that illegal copying of computer information and essential infringement of operation of automated computers, systems and networks are not forms of crime provided for by this Article, and make up only a set of possible consequences which can arise as a result of its commitment. Part 2 of the Article 363 has a blanket reference to described in the Part 1 illegal action.
One more feature of crime is provided for by the Article 363 of the Criminal Code. Only a special subject accounts for its commitment, it is the person responsible for operation of automated computers, systems and networks.
In summary it is necessary to note, that Articles 361, 362 and 363, providing for the criminal liability for crimes in sphere of computers, systems and networks in the Criminal Code of Ukraine still is not enough for efficient counteraction to these socially dangerous infringements. It is necessary to continue scientific research into problems of criminalization and decriminalization of illegal acts in sphere of use of computers, systems and networks, for creation and perfection of theoretical base of corresponding norms of the Criminal Code of Ukraine in view of the international experience of lawmaking in this field.
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