Criminal Law Aspects of Computer Crime. General Theory of Computer Crimes and the Proposed Bill to Modify the Brazilian Penal Code

• Autore: Otto Banho Licks/Joao Marcello de Araujo Junior
• Pagine: 59-81

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Les temps modernes sont somvent, dans les pay's hautement industrialises, caracterises par le terme de revolution informatique. Le temp que precedent, a partir de la moitie du siecle passe, se voit, de son cote, caracterise par la notion de revolution industrielle, le developpement presque explosif, et l'usage repandu, des machines¹.

@1. Introduction

Technological development has changed the history of the world and transformed society. The Invention of the printing press, of the telephone of the automobile and the discovery of electricity, just to cite a few examples, has led to a fundamental redefining of social, political, commercial and military behavior,

During the second half of this century, we have witnessed one of the most farreaching technological advances: the evolution and widespread dissemination of computers. Ten or twelve years ago, a veritable revolution took place when personal computers started to become common. Now, another revolution, unquestionably greater that the first, Is under way. It Is the advent of computer networks².

The velocity and irreversibility of these changes have brought about what Is commonly caled the computer revolution, and what Bell defines as the post-industrial society. In view of this fact, we should say right from thePage 60 start that we do not have to consider computer crimes as the price of progress. To protect ourselves and our computers, we need to replace the myths of the past by the reality of the present. The notion or false idea that computer crime is a problem related to computer techniques, according to Bloombecker³, would be the worst myth of all.

The change undergone by society through technological advances has brought as an mediate and predictable consequence a transformation in the Law and in jural relations too. Today, we are obliged to adjust the Law, particularly Criminal Law, to adapt it to a new form of criminal behavior.

This study will take a look at the present stage of the institutions related to computer crimes. The concepts and definitions of these crimes will be analyzed in the light of international and internal doctrine. A number of solutions already adopted by other legislations will be put forward and discussed.

We will carry out our analysis based on a critical study of already existing comparative legislation in order to suggest some theoretical elements that should guide Brazilian's penal law reform in the area related to computer crimes. This study will try to dealt with the subject in a systematic way, because there are no prior studies of this type in the native doctrine.

Our research covers three specific fields. Firstly, will look at Penal Law related to information technology and the definition of its terms. Secondly, we will analyze the general theory of Penal Law applied to computer crimes. And thirdly will examine the juridical institutions that deal with the criminal law aspects of copyright, privacy protection and trade secrets.

All these subjects will be considered as separate topics. The first topic will be devoted to the study of the changes in positive criminal law arising from situations produced by the information society. Also current Brazilian legislation will be discussed and the proposed bill to modify Brazilian Penal Code will be presented.

@2. Certain Aspects of the General Theory of Penal Law and the Origin of Computer Crimes in other Countries

@@2.1. Current Limits of the General Theory of Penal Law and the Origin of Computer Crimes in other Countries

The information technology field is a fertile one for practicing a crime. Current studies on computer crimes reflect very strongly the internationalPage 61 community's concern and indignation about the dependency of computerized society on computers. This, however, leads to exaggerations in criminal legislation,

Such concern seems to have brought back the days of the Inquisition. Definitions of computer crime as any illegal, unethical, or unauthorized behavior involving automatic data-processing and/or transmission of data⁴ lead us to deny certain basic individual rights, pillars of faith in most States and in the international community. It is interesting that in the name of these same rights, computer crimes law itself deals with such fundamental values as individual privacy.

First of all, we should make it clear that we prefer a more restricted understanding of computer crimes. Taber⁵ at the beginning of the 1980's defined a computer crime, albeit rather imprecisely, as being a crime that, in fact, occurred and in which a computer was directly and significantly instrumental. Taber's contribution to Criminal Law relating to information technology, though not jural, was very important. His pragmatic view, came to influence jurists and scholars like Parker. He was the first to restrict and delimit the scope of the acts which could be defined as computer crimes,

Hence Parker⁶, immediately afterwards, differentiated Computer Crime from Computer Abuse, a term he defined as any intentional act associated in any way with computers where a victim suffered, or could have suffered a loss, and a perpetrator made, or could have made, again. While Computer Crime would be any act as specified in a computer crime statute in the applicable jurisdiction of the statute.

From these preliminary studies carried out in a empirical way, we can thus conclude that the bases and principles of what we call Criminal Computer Law and Computer Crimes have emerged in the USA.

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@@2.2. Computer Crimes and Developments in Legislation

On the International level, the United Nations congress on Computer Crimes⁷ has a similar understanding when It says that:

... the resolution urges Member States to intensify their efforts to combat computer crime by: 1) modernizing national criminal laws, including the institution of measures to:

1. ensure that existing laws adequately apply to the commission of such offences when committed within the computer environment:

2. create new offences where required;

In our view, the dichotomy between modernizing existing laws or creating new ones Is the basis of the difference between Computer Crime and Computer Misuse.

The International community began to realize during the 1980's that traditional criminal law was proving Inadequate for dealing with certain types of abuse⁸ in the use of computers. Hence, we have witnessed the appearance in the so-called more developed countries of specific legislation In response to the absence or unsuitability of traditional penal law. However, this response, In the form of specific laws against computer crime errs through lacking In uniformity and has an even more serious drawback.

The drawback to most legislation that has Initially appeared lies In the fact that It treats the new facts belonging to the technological environment of digital data processing and the computerization of society with the same penal law principles applicable to tangible or corporal crimes. However, to mention a difference, as an example, for other types of crime, It can be said that the laws of physics support and are related to criminal laws. The same cannot be said of computer crimes, This factor will lead to other ways of dealing with these acts and behavior requiring severe punishment.

@@2.3. The Objectives of Computer Crimes

There Is still today a bi-polarization concerning what Is the fundamental juridical property protected by the Criminal Computer Law, whether It Is the computer system or the Information, Some have adopted clear positions,Page 63 like prof. Sieber in Germany, or Parker in the USA, in favor of protecting information, based on a new definition of the term "information" in the post-industrial society.

On the other hand, The National Center for Computer Crime Data in the USA, defends the view that Criminal Computer Law be conceived to protect the computer and communications systems, besides the information⁹. This would be prima facie our position, although not so extreme as to consider, for example, the physical destruction of a computer as a computer crime, as Bloombecker suggests¹⁰.

We believe Criminal Computer Law's main concern with computer and communications systems is fundamentally due to the need to protect their immaterial or intangible components, that is to say, the software and the data which still lack the same protections as the other component, the hardware, and particularly what we call an available resource, resulting from the use of computer systems in computer networks.

We should stress that when we refer to software protection or computer network resources we are not referring to the protection of intellectual property by copyright or patent law, but rather the protection of such juridical property from all other forms of misuse other that piracy, unauthorized copying, or counterfeiting. In our view, unauthorized copying, counterfeiting or piracy of computer software are already provided for in specific legislation, which in the Brazilian case are the software law, Act n 7646/87, the copyright law, Act n 5.988/73, and the Penal Code, section 184, modified by Act n 8.635/93. The same approach has been followed in other countries, like Holland, where software piracy is also not considered as Computer Crime¹¹.

Although the distinction between hardware and software is quite clear from technical and factual points of view, the same can hardly be said of their juridical implications. The Law is moving very slowly towards implementing a juridical system which protects incorporeal and immaterial property as well as material property. In this respect, we agree with prof.Page 64 Davis¹² who supports a similar position towards the juridical protection of intellectual property in the field of artificial intelligence, which is worth quoting:

"As computer scientists learn early in their education, hardware and software are essentially interchangeable. More precisely, they are what we might...