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Introduction

The Internet, which links computers around the nation and around the world, poses unique opportunities and unique problems. Just as law abiding persons can use the Internet for a vast array of useful and productive purposes, criminals, hackers, and even careless persons with no wrongful intent, can create serious problems through misuse of the Internet's capabilities. Internet fraud, viruses and related destructive programs, copyright infringement, theft of services and data, and related offenses create billions of dollars in losses annually. Law enforcement, at both the federal and state level, is struggling to keep pace with advancements in computer technology. To assist them are a wide variety of laws useful in fighting computer crime. Like the medium they govern, these laws are evolving to meet changing technology and criminal behavior.

Means of Combating Crime on the Internet

In many ways, the crimes committed over the Internet are similar to long-established crimes. Theft, fraud, vandalism, trespass, harassment, child pornography, and copyright infringement are problems that predate the Internet. Existing law in these areas forms a basis on which federal and state authorities can pursue individuals who commit related crimes using the Internet. Problems arise, however, not so much with the nature of the crime as with the nature of the Internet. The network of computers spanning the globe allows individuals in virtually any country or state to commit illegal acts in any other location as long as there is a computer and an Internet connection in both places. The tremendous reach and near anonymity of the Internet make it difficult for prosecutors to trace criminal activity to its source. And, once they do, limits of jurisdiction may prevent them from bringing charges against the responsible individuals. To address the unique nature of the Internet, federal and state legislatures have supplemented existing criminal laws with new statutes.

Today, federal and state prosecutors may choose from a wide body of laws to attack Internet crime. One of the most important of these laws is the Computer Fraud and Abuse Act (CFAA), which Congress passed in the mid-1980s and has continued to amend. This law, as the name indicates, was passed expressly to combat crimes involving computers. This act prohibits, among other things, transmitting programs or codes that damage computer networks, as well as gaining access to a computer for the purpose of fraud. One of the big early cases under this act involved a Cornell University student who released a computer virus onto the Internet in 1988. The virus, or "worm," replicated itself in infected computers until they finally crashed from the overload of data. The worm spread across the country and shut down thousands of computers, creating losses estimated at nearly $100 million. The student responsible was convicted under the CFAA. Prosecutors continue to use this act to combat damages caused by hackers, as well crimes of fraud and other offenses. The law provides for both fines and jail terms for violators.

Another law covering a broad array of criminal activity is the federal wire fraud statute. Although passed some 50 years ago, this law addresses crimes committed over telephone lines and is therefore better suited to some Internet crimes than other laws. The wire fraud act applies to schemes to secure property or money through fraud perpetrated over interstate wire communications. Some courts have held that this law may be used to punish violations of copyright laws, such as unauthorized copying of computer programs. The law provides for fines and prison sentences. Where the subject of the fraud is a financial institution, the fines can reach seven figures.

The Copyright Act itself is another remedy applied to Internet thefts of copyrighted property, including computer programs and other works. Software piracy, in fact, has been one of the most expensive crimes perpetrated over the Internet. This is, in large part, because of the ease with which information may be duplicated and retransmitted using interconnected computers. The copyright act prohibits willful duplication of copyrighted works and provides fines and other penalties that increase in severity for repeated violations.

Child pornography is a crime of serious concern that has expanded in the Internet age. Creating or displaying child pornography has long been illegal, but to combat it in the Internet environment, Congress has created special laws. The Child Pornography Prevention Act of 1996 criminalizes the production, distribution and reception of electronic images featuring sexual depictions of children. The law provides for fines and imprisonment, with higher maximum penalties for individuals with a criminal record involving sexual abuse or child pornography. This law, which includes sexual images of adults doctored to resemble children, has been challenged on constitutional grounds. Another act, the Communications Decency Act, which also addressed child pornography, was struck down in part by the Supreme Court. The provisions the Court rejected covered "indecent" and "patently offensive" materials, which are entitled to higher First Amendment protection than obscene materials.

The Electronic Communications Privacy Act addresses interception of wire and electronic communications. It also punishes unauthorized access to or alteration of electronically stored information, or preventing authorized access to such information. This law, like the Computer Fraud and Abuse Act, may be used to combat computer hackers. It has also been used to punish unauthorized reception of encrypted satellite television broadcasts. The ECPA allows punishment by fine or a short period of imprisonment.

Many other federal and state laws are available for punishing crimes committed over the Internet, including those affecting private individuals and companies, and federal and state governments. Prosecutors, legislatures and the courts keep track of one another's actions, searching for effective ways to handle the expanding problem of Internet crime. In addition, the international community has begun a dialogue over how to fight crime across national boundaries.

Conclusion

The problem of crime conducted over the Internet is a vexing one for its victims and for law enforcement. It is easier to commit a crime using the Internet than to punish one. As a result, governments must develop new ways to prevent and punish Internet crime. This will involve new legislation, and new applications and amendments for existing laws. At the same time, it is important that law enforcement efforts not impede lawful conduct by companies or individuals. Sometimes the government's purposes run counter to the business community's, as in the case of encryption. Companies would like to have sound encryption technology to protect Internet transactions. The government is concerned, however, that such technology will allow criminal activity to escape detection. There are also serious privacy and free speech concerns on which government and individuals may take different positions. Regulating Internet crime effectively will require continued development of laws and enforcement practices.

Herman Davis & Associates' Growing Internet Law Practice

Herman Davis & Associates has substantial experience representing clients on matters involving Internet crime. We have handled both civil and criminal cases, representing victims of Internet crime, as well as defendants charged with violating criminal laws. Recently, we helped a software company secure an injunction preventing a Web site from distributing its copyrighted software illegally.

If you would like legal assistance addressing a crime or potential crime concerning the Internet, please contact our offices at (612) 821-0080 or e-mail at davisesq@abanet.org.