Chapter 6 - Chapter 6 Criminal Law and Cyber Crime CHAPTER...

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Unformatted text preview: ' Chapter 6: Criminal Law and Cyber Crime CHAPTER OUTLINE Civil Law and Criminal Law Civil law relates to duties between persons or bet-ween citizens and their governments. except for the duty not to commit orhnes. Cn'm'nal lav:r oonceme come—wrongs against society declared in statutes and punishable through Foes, inprisonment, or death. Cri'nes are ofieraes against society as a inhale and are prosecuted by public officials. not by victims. A. B. KEY DIFFERENCES BETWEEEN CIVI. AND CRIHNAL LAW 1. Burden of Proof Proof that a certain person committed a slime midst be beyond a reasonable doubt. The government must prove that the defendant committed each element of the offense Iwith Mich she or he is charged beyond a reasonable doubt. If a jUry views the evidence as reasonsbty permitting e'ther a guity or a not guilty verdict. then the jury’s verdict must be not guilty. 1. Criminal Sanctions Crlrnhal sanctions ale htended to punish those who commit orines slid to deter others fnom committing similar acts. Sanctions include fines. imprisonment, and death. These may be varied through probation. community service. restitution. and other penalties. CML LIABILlT‘tr FUR column. ACTS Cri'ni'lal acts may also be subject to civil liahiity. Crlminal Liability Crime requires [1} the performance at a prohbited act and {2] a specified state of mind. AI criminal statutes prohibit certain behavior. A. C. TtE {MINIMAL ACT Most orh'ies require an act of commission—an actus reus. or guilty act. Some acts of omission are crimes. Attempt'ng certain acts (murder. for example. or robbery] may also be cr'l'nes. it substantid steps toward acnminal objective are taken. STATE or Mmo Itlti'hat constitutes a I.vi'olrlgful mental statkmens rea—varies accord'ng to the act. For murder. the act is the takhg of a life. and the mental state is the intent to take He. For melt. the act ls the taking ofanother person's property. and the mental state involves both the knowledge that the property is mother's and Hickman! to deprive the owner of It. The requisite mental state can be attrituted to acts ol negligence or rec ness. CORPORATE CRIHINAL LIABILITY 1. Liability of the Corporate Entity Acorn-oration may be held liable for crines committed by its agents or employees withh the course and scope of that employment. The prosecution most show that the corporation authorized or could have prevented the crime. A corporation may also be table for taiing to perform a duty required by law. 2. Liability of Corporate Meets and Directors Corporate directors and cfiicers are personally liable for the crimes they commit, and may be liable tor the actions of employees under their supervision under the "responsible corporate officer“ doctrine. lll. Types of Crimes Criminal acts can be grouped into the following categories. I. VIOLENT CRIME hinder. sexual assault [rape]. assault and battery. robbery [the taking of anothel‘s personal property. from his or her person or immediate presence. by force or intinijatiml—lhese crimes are classified by degree. subleot to intent. weapon. and level of victim's psln and sullen'hg. B. PROPERTY GRIHE 1. 1. Burglary Burglary is, in most states, breaking and entering the building of another. Lamny Larceny is the Wrongful or fraudulent taking and carrying away by any person of the personal property of another. Obtaining Geode by False Pretenees Obtainlng goods by false pretenses ls reptesenling as one some fact or circumstance that is not true. with the intent of deceiving and with the result of defrauding an individual into relinquishing property without adequate compensation. Receiving Stolen Good: Men Arson is the wilful and maloioos burning of a building or some other struchite. and h some states personal property. Forgery Forgery is the fraudulent making or alteration of any writing that changes the legal Iiablity of an- C. PUBLIC ORDER CRIIE These 'nolude public drunkenness. prostitulim. gambling. and iIegal drug use. D. WHITE-COLLAR CFtlhE Whlte-oollar arms is often committed in the course of a legith‘nate occupation. 1. 3. Embankment Ember-Element is the fraudulent oonverslcn of property or money Med by one person but en- trusted to another. Intend'ng to ullimately return embezzled properly is not a defense. Bribery Bribery oi pubic officials is a crime. The bike can be of anything that the official considers valuable. Commission of the crime occurs when the bribe is tendered—the official does not have to agree to do eny'lhhg nor even accept the bn'be. In some states. commercial blibery—that is. kickbacks and payoffs from art individual working for one company to another individual working for another company—is a crane. Brhing foreign officials to obtain favorable bus'ness contracts is also a come. Bankruptcy Fraud To be reIevecI ol oppressive debt under the banlmtptcy laws (Chapter 23]. a debtor must disclose al assets. A debtor who fraudulently transfers assets to favored parties before or alter petitioning for bmlouptoy, or who fraudulently conceals property commits a dine. Creditors may not lie false claims aga'nst a debtor. Insider Trading An individual who obtains material inside information about a corporation can often make considerable profit by using the information to buy and sell the corporation's securities. Insider trad'ng is covered under federal securities laws [Chapter 30]. 5. The Theft of'l'rade Secrets The Economic Espionage Act of 1906 made the theft of trade secrete a federal crime. The act also made it a cr'me to buy or possess trade secrets of another. mowing that they were aogu'red without the owner‘s authorization. Sanctions iicltIIe Imprisonment up to ten years and fines up to 3500.000 {35 million for a corporation or other entity}. Property acquired as a restlt of the 1riolation and property used hits commission is sLbject to forfeiture. Mall and Wire Fraud Use of the mails to defraud is a federal crime that requires {1] devishg a scheme to defraud and i2] us'ng the mails to carry it out. E. ORGANIZED CRIME Illlrgahl2ed crlrne operates ilegitirnately to supply ilegal goods and services. F. 1. 2. Honey Laundering Under federal law. financial Institutions must report cun'ency transactions of over $10,000. To avoid detection under this law. those who engage 'rt 'Ilegal actiy'ties may attempt to launder the money through legitimate businesses. For example, criminal profits might be reported as a restaurant‘s boom. The Racketeer Influenced and Corrupt Organization Act {RICO} To curb the sow of organized crime into legitimate business. the Organized lBrit-rue Control Act of 19ft] included the Racketeer Influenced and Corrupt Ill'irgan'mations Act {RICO}. a. Prohibited Activities It is a federal crine iii to use income obtained from racketeering acthlity to purchase any interest in an enterprise. {2) to acquire or maintain an 'rrterest in an enterprise through racketeering activity, {3} to conduct or panic'pate In the affairs of an enterprise through racketeering activity. or {d} to conspbe to do any of these things. in Criminal Provisions RICO incorporates by reference triirenty-siit federal crimes and nine state felonies. If a person commits trio of these offenses. he or she is guilty of racketeer'ng activity. Criminal sanctions include fires up to 5525.000 per violation or 'mprisonment up to twenty years. or both. and forfeiltre of assets used in the ilegal activity or acquired because of it. it. own Liability The govemment can seek divestiure of a defendants interest in a business or dissolution of the business. Private individuals may recover treble damages. plus attonieys’ fees. for business injuries caused by a violation of the statute. CLASSIFICATION OF CRIMES crimes are felonies or misdemeanors. This deten-nines in uhich court a case is tried, and. in some states. whether a defendant has a right to a jury trial. Felonies are punishable by death or by imprisonment it a federal or state penitentiary for more than a year. Felonies can be subdivided by type of punishment—capital offenses ipunishflrle by death}. first degree feloniBe {punishable by life imprisonment}. and so on. Misdemeanors are crimes punishable by a fine or by confinement for up to a year it a local ial'l. Some states classify misdemeanors according to lengths of confinement. Petty offenses are a subset of misdemeanors. A party guilty of a petty offense may be put in jai for a few-days oriined, or both. W. Defenses to Criminal Liability Prosewtorial procedural violations are also defenses. A. C. J. IIFAIIG'Y Children fi.e.. those under the age of majority] may be tried in juvenile courts. Exceptions in some states include those otter fourteen charged with a felony. ItTOXIOAflOft Involuntary intoxication is a defense if its effect was to make a person either incapable of understanding that the act committed was Wong or incapable of obeying the law. VcIUniary intoxication is a defense if it predudes hay'ng the requied mental state, but i is not a defense to crimes of recklessness or negligence. InaAHITY To defend against charges on this ground. a defendant must meet a test for legal insanity. Most federd courts and some states use the test In the Model Penal Code: ‘A person is not responsible for comma! conduct if. . . as a result of mental disease or defect he lacks substantial capacity eiher to apprec'ate the wrongfuiness of his conduct or to conform his conduct to the requirements of the law." Other states use the M’Naghten test. Some states use the Irresistible impulse test. “STAKE In some states. a person who claims that he or she honestfy do not know that a law was being broken may have a said defense if the law was not published. or reasmably made ltnown to the public. or if the person relied on an official statement of the law that was erroneous. A mistake of fact wil operate as a defense if it negates the requ'red mental state. CONSENT Consent is not a defense to most crimes For hstsnce. the law forbids murder whether or not the victim consents. Cmsent is most successhl as a defense to charges of crines against property. DURESS DLI'ess exists when a wrongful tl'reat induces a person to do something that he or she would not otherwise do. Duress excuses the mime it the threat is immediate and inescapable. JusTIFIAElLE USE OF FORGE Generally. people can use the amount of force that is reasonably necessary to protect themselves. theh dWeIings or other property. or to prevent the admission of a crine. Deadly force can be used in self- detense if there is a reasonable belief that imminent death or great bority harm will othennrise result. if the attacker is Using Unlawful force. and if the person has not initiated or proycked the attack. Deadly force can be used to defend a dweling only to prevent i'nmi'tent death or great bodiy harm. or [it some states} to prevent a felony in the dweling EN'I'RAPI‘ENT This occurs when a goyemment officer suggests that a crime he committed and pressures or hduces an individual to commit it The hnportant issue is whether a person who committed a some was predisposed to do so. STATUTES OF LlfllTAflDtlS Most crhhes. with the exception of murder. must be prosecuted within a certain time. IIIIIIUIITY To obtain fnfonnation. the state can grant immunity from prosecution. A person may then he oompeletl to answer questions [under the Fifth Amendment a person can refuse to answer questions only on the ground of self-incrini‘tation). Often a grant of immunity is part of a plea bargain under which a defendant may be convicted of a lesser offense. and the state uses his or her testimony to prosecute accomplces for more serious crimes. til. Constitutional Safeguards and Criminal Procedures Criminal procedure ls designed to protect the rights of the individual and preserve the presumption of inno- canoe. A. FOURTH, FIFTH. SIXTH. AND EIGHTH AHENDHENT PROTECTIOHS These safeguards apply in aI federal courts. The United States Supreme Court has ruled that most of them also apply in state courts {by virtue of the due process clause of the Fourteenth Amendment}. They include the tolerating. ' The Fourth Amendment protection from unreasonable searches artd seizures. in The Fourth Amendment requirement that no warrants for a search or an arrest can be issued with- out probable cause. - The Fifth Amendment requretnent that no one can be deprived of "life. liner-w, or property without due probess of law." + The Fifth Amendment prtl'tibiticn against double ieopardy. * The Fifth Amendment ban on sell-lncriniiation. - The Sixth Amendment guarantees of a speedy trial. trial byiury. a public trial. the right to confront whnesees. and the right to legal counsel. * The hEighth Amendment prohbitions against excessive bail and thee and cruel and unusual punie merit. In the bushess context. a warrant is required to enter business premises. but a general and neutral enforcement plan wil justify its issuance. No warrant is required for businesses in highly regulated hdustriee. THE EXCLUSIONM‘I‘ RULE AND THE MIRANDA RULE 1. ‘Ihe Exotuslonary Rule All evidence obtailed it violation of the rights speled out it the Fourth. Filth. and Sixth Amendments must be excluded, as Iretell as al evidence derived from the ilegaly obta'ned evidence. Comte delertn'lre whether evidence has been obtained impropetty. 2. The Miranda Rule Individuals who are arrested must be hfomied at their rights to remain silent and to have legal counsel. These rights may be wahred it the waiver ts knowing and voluntary. The United States Supreme Court has recognized a “public safety? exception and a suspect must assertively state that he or she wants to see a lawyer to exerdse that right {not “maybe I should talc to a lawyer“). 'lr'l. Criminal Process A. C. ARREST Before a tit-errant for arrest can be issued, probable cause must exist for believing that the individual has committed a mine. an arrest may be made without a warrant when there is no time to get one. but '1 is stil ludged by the standard of probable cause. INDIETIIENT OR INFORMATION Individuals trust be formally charged before they can be brought to trial. This is by indictment it issued by a grand jury. For lesser crimes. this is by lnton'natlon issued by a govemment prosecutor. The grand jury or the magistrate must determ'ne that there is sufficient evidence to justify bringing the 'ndividual to trial. TRIAL At trial. gullt must be proved beyond a reasonable doubt "Net guilty‘ does not mean “Innocent"; It means that the court had insufficient etidence to enter a 'guin" verdict. BENTEHGIHG GIIJDEIJNEE Federal sentencing guidelhee set a range of penalties for each federal crime. For crinhel Violations of securities laws {Chapter 30). antitrust laws {Chapter 31]. employment laws {Chapters 33 and 34], mal and wire fraud. commercial bribery. and kickbacks and money leunder'ng [discussed above}. the guidel'nes allow judges to take into consideration such factors as a defendant companfs history' of past violations. VII. Cyber Crime These are crimes that occur within the lntemet oornmmity. A. CYBER THEFT Cub-er their is accessing a comps“? online, uni-tout authority. to obtain classified. resnicted. or protected data. or attempt'ng to do so. 1. financial Crime Financial crh‘nes hclude tra‘lsstThg funds via computer wifliout authon'zaticn. 2. Identity Theft Identity theft occurs when a form of identit'naticn is stolen and used illegith'latety. The Identity Theft and Assumption Deterrence Act oi' 1993 made this a federai crime. The Fe'r and Accurate GIedit Transactions Act of 2003 gives victims rights to work with creditors and crsd't bureaus to remove negative information from credit reports. The Identityr Theft Penaltg.r Enhancement Act of 2004 authorized more severe penalties. HACKIIG All) OTHER TERRORISM Hacking consists of using one computer to break into another. Cyber terrorism is expioithg computers tor serious impacts. such as the exploding of an internal data “bomb‘ to shut down a central computer or spreading a virus to cripple a computer new-fork. PROSECUTING CYBER CRIMES Jurisdictional issues and the anonymous netule of technology can hamper inVes-tigetion and prosecution of cyber ori'nes THE OWNER FRAUD AND ABUSE ACT The federal National Information Infrastructure Protection Act of 1996 (an amendment to the counterfeit Access Device and Computer Fraud and Abuse Act of 1934} cr'minalized computer fraud. The crime consists of {1} accessing a computer without authority and {2] taking data. Penatties include fines and imflfisonmsnt for Up to Monty years {and civil sdts}. The text siso notes other federal statutes that may ap 3r. ...
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