ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Lecture 12: Crime

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Criminal Law Even though there is a victim, the injury is to “society,” so the government prosecutes: Unauthorized access Theft of services Denial of service Alteration/destruction of data Trafficking in passwords Computer fraud Password trafficking bombing, spamming Video piracy, software piracy Gambling

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Criminal Jurisdiction When can a state exercise criminal jurisdiction? –Conduct in the state that is an element of the offense –Conduct outside that is an attempt to commit inside –Conduct outside that is conspiracy to commit inside the state + an overt act in the state –Omission to perform a legal duty imposed by the state –Offense is based on a state statute that prohibits conduct outside the state that bears a reasonable relation to a legitimate interest of the state and the actor knows or should know that his conduct is likely to affect that interest. 18 Pa. C.S. § 102

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Strict Construction Problem: criminal statutes are “strictly construed.” If the act is not expressly made criminal by statute, it is not criminal (exception: “common law crimes,” like murder) The words of a criminal statute are not expanded to cover related or analogous behavior.

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Commonwealth v. Lund Lund was charged with the theft of keys, computer cards, computer printouts and using computer time without authority at Virginia Polytechnic Institute (VPI) Statutes reads: “Any person who: … commits simple larceny not from the person of another of goods and chattels of the value of $100 or more, shall be deemed guilty of grand larceny …" Lund was found guilty at trial He appealed on the grounds that computer time is not “goods” or “chattels” Virginia Supreme Court agreed. 232 N.E.2d 745 (Va. 1977)232 N.E.2d 745 “The phrase "goods and chattels" cannot be interpreted to include computer time and services in light of the often repeated mandate that criminal statutes must be strictly construed.”

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS What’s a Commonwealth? Commonwealth means “free state,” not controlled by a king (Oliver Cromwell, 1649); in the U.S., synonymous with “state.” Among the U.S. states, 4 are called Commonwealths: –Pennsylvania –Massachusetts –Virginia –Kentucky The first three were among the original 13 colonies when the U.S. was formed Kentucky was part of Virginia but split in 1792 as the 15th state Also, “a political unit having local autonomy but voluntarily united with the U.S.” Puerto Rico, Northern Marianas Islands.

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Computer Fraud and Abuse Act Prohibits certain acts against “protected computers” that affect interstate commerce. 18 U.S.C. § U.S.C. § 1030 ''protected computer'' means a computer - –exclusively for the use of a financial institution or the United States Government … ; or –which is used in interstate or foreign commerce or communication including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States Provides for a civil action (private lawsuit) by anyone injured by a violation

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Computer Fraud and Abuse Act intentionally accessing a computer without authorization or exceeding authorized access, to obtain –information in a financial record of a financial institution, or of a card issuer or consumer reporting agency on a consumer –information from any department or agency of the United States; or –information from any protected computer if the conduct involved an interstate or foreign communication knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and … obtains anything of value

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Computer Fraud and Abuse Act  Fraud in connection with access devices. 18 U.S.C. § U.S.C. § 1029 “access device” means any card, plate, code, account number, electronic serial number, mobile identification number, PIN, or other … identifier or other means of account access that can be used … to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds Prohibits use or trafficking in counterfeit access devices trafficking in passwords

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Computer Fraud and Abuse Act knowingly transmitting a program, information, code, or command, and … intentionally causing damage without authorization, to a protected computer intentionally accessing a protected computer without authorization, and … causing damage 'damage' means any impairment to the integrity or availability of data, a program, a system, or information (covers denial of service) extortion by threat to a computer crimes investigated by FBI and Secret Service PA: “Unlawful use of computer” 18 Pa.C.S. § Pa.C.S. § 3933

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS AOL, Inc. v. LCGM, Inc. LCGM is a porno site LCGM became an AOL customer and harvested addresses from AOL chat rooms LCGM spammed users through AOL (300,000 s per day) Bulk s violate AOL’s Terms of Service LCGM was sued for violating the Computer Fraud and Abuse Act Held, LCGM’s use of AOL was unauthorized; LCGM obtained value (use of AOL mailing services) and information ( addresses) 46 F.Supp F.Supp. 444 (E.D. Va. 1998)

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS No Electronic Theft Act Any person who infringes a copyright willfully either –for purposes of commercial advantage or private financial gain, or –by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1, U.S.C U.S.C. 506 First offense, less than 10 copies: 1 year + $100,000 First offense, 10 or more copies: 5 years + $250,000 Second offense, 10 or more: 10 years + $250,000 “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS People ex rel. Vacco v. World Interactive Gaming Corp. et al. “ex rel.” (ex relatione, upon relation) means “acting through.” Vacco was the NY Attorney General no lottery or … book-making, or any other kind of gambling, … except pari-mutuel betting on horse races as may be prescribed by the legislature … shall hereafter be authorized or allowed within this state. NY Const. Art. 1, Sec. 9 World Interactive Gaming Corp. (WIGC) is a Delaware corp. with offices in NY. Golden Chips Casino, Inc. (GCC) is an Antigua corp. wholly owned by WIGC. GCC operated an Internet casino using servers in Antigua. GCC advertised in the US; ads were seen in NY

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Antigua

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS People ex rel. Vacco v. World Interactive Gaming Corp. et al. Users had to enter a home address; GCC checked for Nevada Users transferred money to a bank in Antigua. They could gamble. Gambling is legal in Antigua. New Yorkers could gamble by lying about their address NY Attorney General sought an injunction against WIGC, GCC to stop their activities GCC argued Held, NY has jurisdiction. When New Yorkers transfer money to GCC, they are gambling in NY. Doesn’t matter where GCC is. Injunction issued 714 N.Y.S.2d N.Y.S.2d 844 (N.Y.Sup. 1999)

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Cyberstalking “It is the intent of this act to clarify that electronic communications are included in the actions that can constitute the crimes of harassment and stalking.” Cal. Penal Code (a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.Cal. Penal Code 646.9

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Threatening Cal. Penal Code §653m. (a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.Cal. Penal Code §653m

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Other eCommerce Crimes Securities fraud Money laundering, FINCEN, USA Patriot Act Auctions Pyramid schemes Justice Dept Computer Crime and Intellectual Property SectionSection How to report cybercrimereport

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Council of Europe Convention on Cybercrime Signed by the US on Nov. 23, 2001; not yet ratified by the US Senate Requires signatories to make certain acts illegal Provides for –jurisdiction –cooperation –extradition –24/7 information network –compel ISPs to record traffic data

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Crimes Under the Convention Unauthorized access Interception of data, including “electronic emissions” Data interference System interference Misuse or possession of devices, including programs, for committing offenses Computer forgery Computer fraud Child pornography Copyright infringement

ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS Q A &