Adapting the Law to the Online Environment Essay Example for Free

Adapting the Law to the Online Environment EssayFormulating unique conception of the Web in Weaving the Web Berners-Lee accent that the intention was to create a system with one fundamental property it had to be completely decentralized. In the vision of Berners-Lee That would be the only way a new person practical(prenominal)lywhere could start to practice session it the Web without asking for access from allone else1. In the initial years of the Webs functioning, Berner-Lees ideal of a highly decentralized universal system has been sh ard by tens of millions of people around theworld who gather in appreciated and marveled at an invention that makes it unexpectedly casual for anyone with a calculator to connect with anyone else with a computer, anywhere in the world, and to store and send information almost at will. But the mesh and the Web have in any case moved to the center of attention for political relations, business leaders, honoryers and judges, police force s and military establishments, and anyone else dependent on the rule of law and authority structures in modern society.This is a result of the ability and tendency of Internet users to simply skirt or leap over many of the rules and institutions designed to master(prenominal)tain order in the pre- Internet world. Previously designed rules and legal structures enacted for slower-paced, relatively public tangible transactions in a world rimmed everywhere with borders (local, provincial, national) suddenly were challenged as neer before 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, overcriminalization and simply lazier-affair went beyond predictable limits internet identity larceny, credit card fraud, controversies with gambling and online porn reveal significant wishing to adapt the law to online en vironment, to analyze the specifics of cyber crimes and to create effective regulatory norms.Traditional Crime and Cyber Crime Defining BoundariesFrom the primary perspective, the Internet imitates and, in most cases, runs correspond to what is often happening in normal life, therefore, it is no wonder that the law had to take account of this new parallel of historical life. Hence the frequent appeals for cyberlaw or cyberspace law. Simultaneously, the imitation of life by the Internet does non 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 even render them obsolete, prior forms of information may coexist alongside them, albeit uneasily and paroxysm permanent corrosion. In so far as it is non possible to divine the extent to which the Net will generate parallel or free-living forms of activity, 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 small 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 developing and so must the Internet law. Edwards and Waelde view Internet Law as universe 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, opposite to the core pragmatic perception of those they refer to as looking upon the Internet as law-free.3 And although the regulation of Internet content, transactions and activities seems to be logical and self-evident, the problems start visual aspect from the very definition of cyber crime.Blacks Law Dictionary lines a crime as a social harm that the law makes punishable the desecrate 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 homo can inflict on one another, for instance homicide, rape, robbery, arson, vandalism, fraud, nestling abuse, etc. According to Susan Brenner, criminal law does not typically differentiate offenses based upon the instrumentalities that are apply 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 use a firearm or other dangerous instrumentality in the focal point of a crime.6 This approach could, perhap s, 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 access to a physical space a building or a share 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 commove either (a) social harms that have already been identified 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 category of apportion because, as Brennans hacking-trespass example illustrates, computer technology can be used to commit social harms in ways that do not fit comfortably into our existing offense categories. Another 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 intrude 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 target 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 activ ity, the perpetrator attacks an innocent users computer or computer system either by gaining illicit access to it or by bombarding it from outside.Cybercrimes that fall into this category 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 imitationing or altering information in the system). The target cybercrimes excessively include denial of service attacks and the spread 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, stalk ing and harassment, forgery, obstruction of justice and the creation or dissemination of child dirty word. These are conventional crimes, but it may be difficult to prosecute 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 imitationing the property, instead of appropriating it entirely. In declare 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 curb 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 write extortion letters to his victim or a drug dealers using a computer to monitor his cut-rate sales, 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 defend 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 exclusively 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 foreign 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 delight 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 behave 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 c omputer 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 secure, Child Pornography, Identity wile in InternetIn order to address the problems in regulation of online environment more effectively, this paper aims to focus on several most ruffianly aspects of the issue copyright violations, child pornography and identity theft or credit card fraud. Defined by Culberg, copyright is a legal fraud giving the author (or holder of the copyright) the exclusive right to control 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 stir up of criminal copyright infringement are, first, that t he offense cannot be prosecuted because the five year statute of limitations has run.17Other defenses are the first sale dogma 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 software 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. philanders 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 unlawful 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 low Amendment, which states, in part, that Co ngress is to make no law abridging the freedom of speech. The U.S. Supreme Court has 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 decisive as well statistical perspective, child pornography appears a relatively recent addition to the list. However, the rise of computer technology raised concerns about practical(prenominal) child pornography, i.e., pornography created using morphed or other artificial images of children, and in 1996 Congress adopted 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 encom pass 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 sexual 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.