Chapter 6,7,8 chapter summaries

Chapter 6,7,8 chapter summaries - (9 CHAPTER 6[Criminal law...

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Unformatted text preview: (9 CHAPTER 6 [Criminal law and Cyber Crime .o elements: Reviewing. "mailman“ n- [or private :eds $5,000 aim of com damages, an One day, Kendra Donahue received an e-mail advertisement offering a flee sample bottle of a “superfood” nutritional supplement made from acai berries, which are supposed to boost energy and aid weight loss. She clicked on the link to place an order and filled out an online form with her name, address, and credit-card number to pay for the shipping charges. Although Donahue read the terms displayed, nothing on the page indicated that she was signing up for a monthly shipment. Shortly before the bottle of pills arrived, Donahue received a phone call from her credit-card company asking if she had authorized a charge on her credit card at a grocery store in lsrael. She told the company representative that she had not. when Donahue received her credit-card statement, she found a number of other unauthorized charges. A month later, she received a second bottle I of the supplement in the mail and then discovered that her credit card had been charged $85 for this shipment. She called the 800 number on the _ invoice, but no one answered, so she contacted the seller via the Internet. An online agent at the seller's Web site indicated that she would cancel '- future monthly shipments to Donahue (but claimed that the terms were posted at the Web site). in order to obtain a refund, however, Donahue " ould have to pay to ship the bottle back to a post office box in Florida. It the bottle arrived within fifteen days, the company would refund the harges. When asked about the unauthorized charges on Donahue's card, the seller's agent claimed thatthe company did not sell her credit-card ntorrnation to any third party or have any contacts with Israel. Using the information presented in the chapter, answer the following questions. violating th , What is the term for the type of e-rnail that Donahue received offering a sample of the nutritional supplement? _. Assuming that the information contained in the email was not false or misleading, did it violate any federal law? Why or why not? ' Is it clear that the company that sold the acai berry supplement to Donahue was engaged in a crime relating to her credit card? Why or why not? Suppose that when Donahue clicked on the link in the e—mail, malicious software was downloaded onto her computer. 3_Wher1ever Donahue subsequently typed in her personal information online, that program then recorded the keystrokes “and sent the data to cyber crooks. What crime has been committed, and why might it be difficult to prosecute? exclusionary rule 163 phishing 110 felony 153 plea bargaining 161 'ndareasonable doubt 146 forgery 152 probable cause 162 111 grand iury 165 robbery 150 '_ hacker 171 search warrant 162 ter crime 161 identity theft 168 self—deiense 159 -' indictment 165 self-incrimination 161 information 166 spam 112 larceny 151 Troian horse 11D malware 171 virus 171 mensrea 141 vishing 170 misdemeanor 158 ’ white-collar crime 152 money laundering 151 worm 111 petty offense 153 who i1 me Cri.m.iesttav ‘ . 3 1. Civil [aw—Spells out the duties that exist between persons or between citizens and their governments, excluding the duty not to commit'crimes. . - (Continued) UN” ONE [The Foundations ChaPletSWmat‘VCr'm'MH-awand Ctbetcflmemntmued . -. . .. . 1’ civil Law and -' i ' -' 9- :-' - ‘ 2. Criminollow—Has Logo with crimes, which are wrongs against society defined in statutes and, if Criminal law-{ontlnued ' cummitted, punishable by society through lines an'dior imprisonment—and, in some cases, death. Becaus - ' " ~ --- ' . . _. crimes are offenses agoinstsocr'ety as a whole, they are prosecuted by a public official, not by victims. - 3. Key differences—An important difference between civil and criminal law is that the standard of proo is higher in criminal cases (see Exhibit 6—,t on page 146 for other differences between civil and criminal law). ‘ _ y . , . 4. Civil liability for criminal acts—:A criminal act may give rise to both criminal liability and tort liability (see Exhibit 6—2 on page 148' for an example of criminal and tort liability for the same act). ' =:r- :-. .; ,,'..;:. Criminal Liability ‘ ‘ t. Guilty act—in general, some form of harmful act must be committed for‘a crime to exist. (See pages 141-150.) 2. intent—An intent to commit a crime,'or a wrongful mental state, is generally required for a crime to exist. 3. liability of corporations—Corporations normally are liable for the crimes committed by their agents and employees within the course and scope of their employment. Corporations cannot be imprisoned, but they can be fined or denied certain legal privileges. _ 4. liability of corporate officers and directors~Corporate directors and officers are p rsonally liable ft the crimes they commit and may be held liable for the actions of employees under their supervisioi Types of Crimes t. Crimes fall into five general categories: violent crime, property crime, public order crime, white-coll (See pages 150-158.) crime, and organized crime. ‘ a. Violent crimes are those that cause others to suffer harm or death, including murder, assault an battery, sexual assault (rape), and robbery. : b. Property crimes are the most common form of crime. The offender's goal is to obtain some economic gain or to damage property. This category includes burglary, larceny, obtaining goods by false pretenses, receiving stolen property, arson, and forgery. c. Public order crimes are acts, such as public drunkenness, prostitution, gambling, and illegal dru; use, that a statute has established are contrary to public values and morals. ' d. White-collar crimes are illegal acts committed by a person or business using nonviolent meanst obtain a personal or business advantage. Usually, such crimes are committed in the course of a legitimate occupation. Embezzlement, mail and wire trend, bribery, bankruptcy fraud, the theft trade secrets, and insider trading are examples of this category of crime. a. Organized crime is a form of crime conducted by groups operating illegitimately to satisfythe public’s demand for illegal goods and serviceslsuclt as gambling or illegal narcotics). This category of crime also includes, money laundering and racketeering (RlCO) violations. 2. Each type of crime may also be classifiedaccordlngto its degree of seriousness. Felonies are serio crimes punishable by death or by imprisdnment for more than one year. Misdemeanors are less serious crimes punishable by lines or by confinement for up to one year. Defenses to Defenses to criminal liability include justifiable use of force, necessity, insanity, mistake, duress, Criminal Liability . - V entrapment, and the statute of limitations. Also, in some cases defendants may be relieved of crimina (See pages 158—161.) _1 liability, at least in part, if they are given immunity. Constitutional Safeguards t. Fourth Amendment—Provides protectibn against unreasonable searches and seizures and requires and Criminal Procedures that probable cause exist before a warrant for a search or an arrest can be issued. . (See pages 152-161.) - . . 2. Fifth Amendment—Requires due process of law, prohibits double jeopardy, and protects against st , ' incrimination. _ ~ . . . 3. Sixth Amendment—Provides guarantees of a speedy trial, a trial byiury, a public trial, the right to confrontwitnesses, and the right to counsel. 4. Eighth Amendment—Prohibits excessive bail and fines, and cruel and unusual punishment. 5. Exclusionory rule—A criminal procedural rule that prohibits the introduction at trial of any evident obtained in violation of constitutional rights, as well as any evidence derived from the illegally obtained evidence. *— . CHAPTER 6 Irritation! lawann‘ Cyber Crime Chapter .S__u mmary: 7-Cf.ifl1i“-al.._ir?i¥:.?;l'd CyberCrrme, 9931‘ onstitutiOnalSafeguards 'f' 6. Miranda rule—A rule set forth by the Supreme Court in Miranda v: Arizona holding that individuals :atl‘l. Becau's i d Criminal Procedures— ‘ who are arrested must be infoidred of certain constitutional rights, including their right to counsef. I continued z‘ 7. Criminalprocess—Procedures governing arrest, indictment, and trial for a crime are designed to safeguard the rights of the individual against the state. The federal government has established sentencing iaws or guidelines, which are no longer mandatory but provide a range of penalties for each federal crime. I. Cyber fraud—The crime of cyber fraud occurs when misrepresentations are knowingly made over the internet to deceive another. Two widely reported forms of cyber crime are online auction fraud and online retail fraud. 4’" 2. Cyber theft—In cyberspace, thieves can steai data from anywhere in the world. Their task is made easier by the fact that many e-businesses store information such as the consumer's name. email address, and credit-card numbers. Phishing, vishing, and employment fraud are variations of identity theft. 3. Credit-card crime—The financial burden of stofen credit-card numbers fails on merchants and credit- card issuers more than on consumers. 4. Hacking—A hacker is a person who uses one computer to break into another. Malware is any program that is harmful to a computer or, by extension, a computer user. Worms, viruses, and botnets are examples. Some hackers simply want to prove how smart they are, but others have more malicious purposes. Cyberterrorists aim to cause serious probiems [or computer systems. They may target businesses to find out a firm’s plans or transactions, or insert false codes or data to damage a firm's product. A cyberterrorist attack on a major U.S. financial institution or telecommunications system could have serious repercussions, including jeopardizing national security. 5. Spam—Unsolicited junk e-mail accounts for about three-quarters of all e-mails. Laws to combat spam have been enacted by thirty-six states and the federal government, but the flow of spam continues. In 2006, Congress enacted the U.S. Safe Web Act to address spam that originates from other nations. 6. Prosecution of cyber crime—Prosecuting cyber crime is more ditficult than prosecuting traditional crime. Identifying the wrongdoer through electronic footprints left on the internet is complicated, and jurisdictional issues may arise when the suspect lives in another jurisdiction or nation. A significant federal statute addressing cyber crime is the Computer Fraud and Abuse Act of 1984. “ ' ' no pages 151—114.) U. SPOTTERS , alces her roommate’s credit card, intending to charge expenses that she incurs on a vacation. Her first stop is a tation, where she uses the card to pay for gas. With respect to the gas station, has she committed a crime? If so, is it? ut permission, Ben downloads consumer credit files from a computer beionging to Consumer Credit Agency. hen sells the data to Dawn. Has Ben committed a crime? If so, what is it? Ck your answers to these questions against the answers provided in Appendix G. E THE TEST _ jw.cenga gebrainxonr, enter the ISBN number "9781111530617,’_’ and click on “Find" to locate this textbook’s hen, click on “Access Now" under “Study Tools," and select “Chapter 6” at the top. There you will find an Quiz” that you can take to assess your mastery of the concepts in this chapter, as well as “Flashcards" and a '“ of important terms. international organiration 181 ‘1 act of state doctrine 183', dumping 190 r i . choice-of—language clause 191 export 185 M letter of credit 194 choice-of-law clause .192 expropriation 18A normal trade relations (NTR) status 190 l comity 182 force majerrreciause 192 quota 188 confiscation tall foreign exchange market 193 sovereign immunity 184 forum-selection clause 192 tariff 188 treaty 181 correspondent bank 194 distribution agreement 185 international law 180 ”Under this principle, nations give effect to the laws and judicial decrees of 1. The principle of comin other nations for reasons of courtesy and international harmony. . . 2. The act ofstafe doctrine—A doctrine under which US. courts avoid passing judgment on the validity ‘ . within its own territory. of public acts committed by a recognized foreign government 'gn immunity—When certain conditions are satisfied, foreign nations are 3. The doctrine of soverer immune from US. iurisdiction under the Foreign Sovereign Immunities Act of 1976. Exceptions are made when a foreign state (a) has waived its immunity either explicitly or by implication, (b) has engaged in commercial activity within the United States, or (c) has committed a tort within the United States. ansactions in several ways. These include U.S. domestic firms may engage in international business tr (1) exporting, which may involve foreign agents or distributors, and (2) manufacturing abroad through licensing arrangements, franchising operations, wholly owned subsidiaries, or ioint ventures. :3 in the interests of their economies, foreign pelicies, domestic policies, or other national priorities, nations impose laws that restrict or facilitate international business. Such laws regulate foreign investments, exporting, and imparting. The World Trade Organization attempts to minimize trade _ ' do regional trade agreements and associations, including the‘ European Union ’1 and the North American Free Trade Agreement. 5 contracts often include choice—of-language, fcirum-selection, and choice—ot—law ' the language of the agreement and clauses to reduce the uncertainties associated with interpreting dealing with legal differences. Most domestic and international contracts include forcernajeure clauses. ; They commonly stipulate that acts of God and certain other events may excuse a party from liability for ; nonperlormance of the contract. Arbitration clauses are also frequently found in international contracts. 1. Currency conversion have different monetary systems, payment on international contracts requires currer’rcy conversion at a rate specified in a foreign exchange market. 2. Correspondent banking—Correspondent banks facilitate the transfer of funds from a buyer in one .3 country to a seller in another. . . ' g 3. Letters of credib-Letters of credit facilitate international transactions by ensuring payment to sellers and assuring buyers that payment will not be made until the sellers have complied with the terms 0i the letters of credit. Typically, compliance occurs when a bill of fading is delivered to the issuing bani 1. Antitrust lows—US. antitrust laws may be applied beyond the borders of the United States. Any conspiracy that has a substantial effect on commerce within the United States may be subject to the - Sherman Act, even if the violation occurs outside the United States. -' " ' 2. Antidiscriminotion lowsflfhe major US. laws prohibiting employment Title tilt of the Civil Rights Act of 1964, the Age Discrimination in Employ Americans with Disabilities Act of 1990, cover U.S. employees working a to apply the US. laws would violate the laws of the host country. Interlnationalltawe._,'.. I Sourcesand Principles ,3 (See easement-l . mummy International busines —Because nations a: UStawsrn . : 5- ' :a' Global Content ' J " _ ' ' ‘93-) .. discrimination, including mentAct of 1967, and the broad for US. firms—unless E's“ CHAPIER 8 | Intellectual Property and laternet law ons,aU. . '. . . . I51 _ . 51a ire courts have protected this color combInatIon The same holds for Protecting exclusrve rights to a mark can be expensrve, so you black and- copper color combination of Duracell batteries. will have to determine how much it is Worth to your company to Inanrental designs—Symbols and designs associated with a . PTO“?Ct your rights. C063 Cola and ROHS‘ROYCE TU“ newspaper and icular mark "91,1131” are protected 59 do not attempt to copy)“ magazine ads stating that their names are protected trademarks, em __For instance, Levifs places a smali red tag on the left side of ‘ and cannot be USEd 35 generic terms. Occasionaily, SUICh ads rear pocket of' ItsI' Jeans - . threaten lawsuits against any competitors that infringe the ; " trademarks. If you work In a small company, making such major _ . expenditures to protect your trademarks and service marks will not _ _be cost- effective eds—Sounds can also be protected. _For example the familiar ”51311le C "i he Metro. -Goldwyn'-h1ayer lion' Is protected.” root the mar [on to Protect Your Trademarks and Service Marks ce your company has established a trademark or a service mark, FOR CRITiCAL ANALYSIS nager, you will have Ito decide how aggressrvely you wish to The U 5 Patent and Trademark Office requires that a registered ct those marks. If you fail to protect them, your company faces _ trademark or service mark be put into commercial use Within three ibilii‘l 1531 they WI“ become generic. RIememblIEIt that Wit-fin __ years after the application has been approved Why do you think shredded wheat, and many other familiar terms Ivere once the federal government put Ithis requirement Into place? rotected trademarks. ey form a Iltwith a irien rideo game cal ates Hallowed' ng questions. «HVWWfiWLykpo-ww «—-—-- lnfringe o htr distributed network 224 service mark 2:1 ' domain name 213 trade dress 211 intellectual property 206 trade name 212 _ license 215 trade secret 226 I III 213 patent 215 trademark 207 peer-to-peer (P2P) networking 224 - 1. A trademark is a distinctive mark, motto, device, or embfem that a manufacturer stamps, prints, or I' otherwise affixes to the goods it produces so that they may be identified on the market and their origin vouched for . 2. The major federal statutes protecting trademarks and related property are the Lanham Act of 1946 and the Federal Trademark Dilution Act of 1995. Generally, to be protected a trademark must be . sufficiently distinctive from all competing trademarks. '3‘ 3. Trademark Ininngement octurs When a person uses a mark that Is the same as or confusingly similar to, the protected trademark service mark trade name or trade dress of another without permission when marketing goods or services. __ A cyber mark is a trademark in cyberspace. Trademark infringement in cyberspace occurs when one person uses, in a domain name or in meta tags, a name that is the same as, or confusingly similar to, the protected mark of another. 1. A patent is a grant from the government that gives an inventor the exctuslve right to make use, and sell an invention for a period of twenty years (fourteen years for a design patent) from the date when the application for a patent' Is filed. To be patentable, an invention (or a discovery, process, or design) must be genuine, novel, useful, and not obvious In light of current technology Computer software may be patented. (Continued) UNIt’ we I The Commercial Environment ”Chapter Summary grintellectual Property and internet Law, Continued Patents-Continued ' ' - 2. Almost anylhIng Is patentable, except the laws of nature naturai phenomena and abstract ideas I " ' -' ' ' '- ' ' (including algorithms). Even business processes or methods are patentable if they relate to a machine § _ _ = _ or transformation.= _ 3 g .; I - .: -- . - 3. Potentinfringementoccurs when a person uses or sells another's patented design, product, or 1 ' " ' ' ‘ ‘ process without the patent Owner's permission. The patent holder can see the infringer in federal 3 court and request an injunction, but must prove irreparable injury to obtain a permanent iniunction against the infringer. The patent holder can also request damages and attorneys' fees. l I l . l Copyrights ' . t. A copyright is an intangible property right granted by federal statute to the author or originator of ' (See pages 219426..) certain literary or artistic productions. The; Copyright Act of 1976, as amended, governs copyrights. 2. Copyright infringement occurs whenever the form or expression of an idea' is copied without th...
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