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Public International Law of Cyberspace pp 263–293Cite as

Cyber Crimes

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Part of the book series: Law, Governance and Technology Series ((LGTS,volume 32))

Abstract

Cyber crimes pose everyday threats to anyone anywhere who is engaged in cyber activities. They include illegal access to a computer system; illegal access, interception or acquisition of computer data; illegal interference with a computer system or computer data; production, distribution or possession of computer misuse tools; and breach of privacy or data protection measures. Cyber crimes also encompass computer-related acts for personal or financial gain or harm consisting of computer-related fraud or forgery; computer-related identity offences; computer-related copyright or trademark offences; sending or controlling sending of Spam; computer-related acts causing personal harm; and computer-related production, distribution or possession of child pornography. The Council of Europe’s 2001 Budapest Convention on Cybercrime is the only multilateral agreement in force on cyber crimes and may be used as a model for national legislation as well as international legal cooperation to suppress cyber crimes. US law on cyber crime is analyzed in detail as a case study on criminal prosecution of cyber crime at the national level. Theft of virtual currencies such as bitcoin and virtual items online can be a prosecutable offence of cyber theft. Yet, there is no established case law at either the national or international level whether “hacktivism” (i.e., the non-violent use of a cyber means for political objectives such as website defacement, DoS or DDoS attacks, virtual sit-ins, or virtual sabotage) is an exercise of the freedom of expression and, as such, is not to be punished as a cyber crime.

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Notes

  1. 1.

    Cf. the definition of a cyber crime as “any conduct that involves the use of a computer or other device in the commission of a crime” in George Curtis, The Law of Cybercrimes and Their Investigations (Boca Raton: CRC Press, 2012), xi, and a similar definition in Singer and Friedman, Cybersecurity and Cyberwarfare, 85–88. The UNODC’s Comprehensive Study on Cybercrime (New York: United Nations, 2013) finds it unnecessary to define the term as it is not amenable to a single description (ibid., 12, 14). For a non-legal analysis of the phenomenon of cyber crime, see, Bernik, Cybercrime and Cyberwarfare, 1–56.

  2. 2.

    For a comparison between US law and Indian law on cyber crimes, see, Himanshu Maheshwari, H.S. Hyman, and Manish Agrawal, “A Comparison of Cyber-Crime Definitions in India and the United States,” in Cyber Security, Cyber Crime and Cyber Forensics: Application and Perspectives, eds. Santanam, Sethumadhavan and Virendra (Hershey, NY: Information Science Reference, 2011), chap. 3 at 42–44.

  3. 3.

    UNODC, Comprehensive Study on Cybercrime, 16 and Annex One.

  4. 4.

    Ibid., 19–21. In Sept. 2016, two persons in the UK were charged under the Gambling Act with promoting a lottery and advertising unlawful gambling, being the first prosecution in the UK involving online video game gambling (Rory Cellan-Jones, “YouTuber Nepenthez charged over video game gambling site”, BBC, 16 Sept. 2016).

  5. 5.

    UNODC, Comprehensive Study on Cybercrime, 31, citing Art. 61 of the TRIPS. For a general introduction to cyber crimes, see, Philipp Kastner and Frédéric Mégret, “International Legal Dimensions of Cybercrime” in Research Handbook, eds. Tsagourias and Buchan, 190–208.

  6. 6.

    “Cyber-security: White hats to the rescue,” Economist, 22 Feb. 2014, 56–57.

  7. 7.

    Jim Finkle, “360 mil. Stolen Web credentials available on black market: firm,” China Post, 27 Feb. 2014, 1.

  8. 8.

    Rhiannon Williams, “Malware-infected USB sticks posted to Australian homes”, BBC, 21 Sept. 2016.

  9. 9.

    Jose Pagliery, “What we know about the bank hacking ring – and who’s behind it,” CNN, 16 Feb. 2015.

  10. 10.

    “Kenya arrests 77 Chinese over ‘hacking’,” Al Jazeera, 4 Dec. 2014.

  11. 11.

    Financial Times, 16 Mar. 2016, Special Rep. on Cyber Security, 3.

  12. 12.

    Kevin Dugan, “Bangladesh bank blames NY Federal Reserve for $100 M heist,” New York Post, 9 Mar. 2016; Victor Mallet and Avantika Chilkoti, “Bangladesh bank governor quits over $101 m heist,” Financial Times, 16 Mar. 2016, 4.

  13. 13.

    Cris Larano and Katy Burne, “$101 Million Whodunit at the Fed,” Wall Street J., 16 Mar. 2016, C1.

  14. 14.

    Michael Corkery, “Global bank network reports new cyberheist,” Int’l New York Times, 14–15 May 2016, 10.

  15. 15.

    Ibid.

  16. 16.

    Martin Arnold, “Cyber thieves target VN banks,” Financial Times Weekend, 14–15 May 2016, 2.

  17. 17.

    “¥1.4 billion stolen from 1400 ATMs,” Yomiuri Shimbun, 22 May 2016.

  18. 18.

    “Criminals find ATM hacking easy via the net”, Bangkok Post, 25 Aug. 2016.

  19. 19.

    Shelly Banjo, “Home Depot Hackers Exposed 53 Million E-mail Addresses: Hackers Used Password Stolen From Vendor to Gain Access to Retailer’s Systems,” Wall St. J., 6 Nov. 2014.

  20. 20.

    “Oriental Hotel hacked, card data stolen,” Bangkok Post, 5 Mar. 2015.

  21. 21.

    David Nield, “Uber hack leaves 50,000 drivers vulnerable,” Digital Trends, 28 Feb. 2015.

  22. 22.

    Jose Pagliery, “Premera health insurance hack hits 11 million people,” CNN, 17 Mar. 2015; Chris Baraniuk, “US health insurer warns 3.7 million after cyber attack,” BBC, 4 Aug. 2016.

  23. 23.

    Jose Pagliery, “Hackers are stealing your tax refund,” CNN, 10 Feb. 2015.

  24. 24.

    “10 worst hacks of all time,” CNN, 5 Feb. 2015. See also, Bill Saporito, “Plastic Surgery: A better credit card is the solution to ever larger hack attacks in the U.S.,” Time, 10 Feb. 2014, 11–12.

  25. 25.

    One Albert Gonzalez from Miami was sentenced to 20 years in prison for masterminding the hack (Saporito, loc. cit.).

  26. 26.

    Maija Palmer, “Rogue states play host to outlaw servers,” Financial Times, 16 Mar. 2016, Special Rep. on Cyber Security, 3.

  27. 27.

    See also, Anita Campbell, “Inside Microsoft’s Digital Crimes Unit,” Small Business Trends, 19 Apr. 2015.

  28. 28.

    Heather Kelly, “Reddit’s stand against revenge porn,” CNN, 25 Feb. 2015; “Reddit, Google crack down on posing nude pics,” Taiwan News, 26 Feb. 2015, 6.

  29. 29.

    UNODC, Comprehensive Study on Cybercrime, 5.

  30. 30.

    Ibid., xi-xxvii, and Chapters Three through Seven.

  31. 31.

    Ibid., 125.

  32. 32.

    Ibid., 131–132.

  33. 33.

    Ibid., 132.

  34. 34.

    See also, Sophie Kwasky, “Lutte contre la cybercrminalité et respect des droits de l’homme: les instruments du Conseil de l’Europe” in Société Française pour le Droit International, Colloque de Rouen: Internet et le droit international (Paris: Editions A. Pedone, 2014), 339–355 at 345 et seq.

  35. 35.

    Council of Europe, Explanatory Report on the Convention on Cybercrime (ETS No. 185) [hereinafter referred to as “Budapest Convention Explanatory Report”], para. 16.

  36. 36.

    Ibid., para. 33.

  37. 37.

    Curtis, The Law of Cybercrimes, 3.

  38. 38.

    Budapest Convention Explanatory Report, para. 34.

  39. 39.

    Ibid., para. 44.

  40. 40.

    Ibid., para. 46.

  41. 41.

    Ibid., paras. 49–50.

  42. 42.

    Ibid., para. 50.

  43. 43.

    United States v. Morris, 928 F.2d 504 (2d Cir. 1991).

    Ryan Collins pleaded guilty in May 2016 to one count of unauthorized access to a protected computer to obtain information in violation of the Act. From November 2012 until the beginning of September 2014, Collins engaged in a sophisticated phishing scheme to obtain usernames and passwords from his victims in order to access the victims’ e-mail accounts and obtained personal information including nude photographs and videos. His victims totalled approximately 600 persons, including several A-list Hollywood actresses. He was sentenced by the US District Court in Harrisburg, Pennsylvania, on 27 Oct. 2016 to 18 months’ imprisonment. Dept. of Justice, US Attorney’s Office, Middle District of Pennsylvania, Press Release, 27 Oct. 2016.

  44. 44.

    United States v. Mitra, 405 F.3d 492 (7th Cir. 2005).

  45. 45.

    United States v. Kramer, 631 F.3d 900 (8th Cir. 2011).

  46. 46.

    Greg Botelho, “Man suspected of hacking U.S. military satellite data arrested in UK,” CNN, 6 Mar. 2015. For a brief assessment of the cybercrime situation in the UK itself, see “Thieves in the night: The growth in general wickedness online is testing the police,” Economist, 20 Dec. 2014, 74–75.

  47. 47.

    David Porter, “US says illegal trades gave hackers $100m,” Boston Globe, 12 Aug. 2015.

  48. 48.

    Budapest Convention Explanatory Report, para. 53.

  49. 49.

    Ibid., para. 54.

  50. 50.

    Ibid., para. 57.

  51. 51.

    Ibid., para. 60.

  52. 52.

    Ibid., paras. 65, 69.

  53. 53.

    Ibid., paras. 67, 69.

  54. 54.

    Cf. the facts in People v. Versaggi, 83 N.Y. 2d 123 (1994), New York Ct. App. However, that judgment concerned interpretation of New York’s penal code.

  55. 55.

    “Spam e-mail levels at 12 years low,” BBC, 17 July 2015; “Thailand at high risk for ransomware”, Bangkok Post, 19 Sept. 2016.

  56. 56.

    Mark Ward, “Cryptolocker victims to get files back for free,” BBC, 6 Aug. 2014; “Gamers targeted by ransomware virus,” BBC, 13 Mar. 2015. For other examples, see, Jose Pagliery, “U.S. hospitals are getting hit by hackers,” CNN, 24 Mar. 2016.

  57. 57.

    “‘Xbox and PlayStation tackle cyber attacks,” BBC, 26 Dec. 2014; Kevin Conlon and Ben Brumfield, “Gamers’ offline misery stretches into second day,” CNN, 26 Dec. 2014. Two suspects were arrested in the UK in Jan. 2015.

  58. 58.

    For other hacks allegedly linked to Lizard Squad, see, Kelvin Chan, “Malaysia Airlines site hacked by IS supporter,” China Post, 27 Jan. 2015, 13. In August 2015, six British teenagers were arrested for allegedly using hacker-for-hire services called Lizard Stresser to take down corporate websites including Amazon, Sony and Microsoft in exchange for bitcoins (Bloomberg News, “Teen hackers targeted Amazon, Sony”, Bangkok Post, 28 Aug. 2015). The operation targeted users of an online service called Lizard Stresser, which offered to carry out DDoS attacks in exchange for bitcoins.

  59. 59.

    Budapest Convention Explanatory Report, para. 73.

  60. 60.

    Ibid., para. 75.

  61. 61.

    Jose Pagliery, “Hackerclaims to be selling stolen NSA spy tools”, CNN, 15 Aug. 2016; Robert McMillan, “Hacked Attack Code Looks Genuine”, Wall St. J., 18 Aug. 2016, B1; David E. Sanger, “Leaked code raises fears that N.S.A. was hacked”, Int’l New York Times, 18 Aug. 2016, 1.

  62. 62.

    Budapest Convention Explanatory Report, paras. 81, 84.

  63. 63.

    Ibid., para. 82.

  64. 64.

    Ibid., paras. 86–90.

  65. 65.

    See the explanation of the distinction between these two offences in Clare Sullivan, Digital Identity (Adelaide: University of Adelaide Press, 2011), xiii, 113–120.

  66. 66.

    “Hackers steal millions of Minecraft passwords,” BBC, 29 Apr. 2016.

  67. 67.

    This was the method used by the defendant in United States v. Iannone, 184 F.3d 214 (3d Cir. 1999).

  68. 68.

    Stephen Ohlemacher, “IRS: Computer breach bigger than first thought: 334 K victims,” Seattle Times, 17 Aug. 2015. The report mentions that IRS investigators believed the hack was part of a sophisticated criminal operation based in Russia.

  69. 69.

    292 F.3d 555 (7th Cir., 2002).

  70. 70.

    Dalia Hatuqa, “Algerian hacker: hero or hoodlum?,” Al Jazeera, 21 Sept. 2015.

  71. 71.

    US Dept. of Justice, Press Release (3 May 2013).

  72. 72.

    Ali Younes, “Hacker Hamza Bendelladj sentenced to 15 years,” Al Jazeera, 22 Apr. 2016.

  73. 73.

    United States v. Aleksandr Andreevich Panin, a/k/a Gribodemon, and Hamza Bendeliadja, a/k/a Bx1, Case 1:11-cr-00557-AT-AJB Document 35 (filed 26 Jun. 2013).

  74. 74.

    United States v. Seleznev, No. CR11-70RAJ (W.D. Wash. Aug. 25, 2016); US Dept. of Justice Criminal Division, USAO – Washington, Western Press Release No. 16–978 (25 Aug. 2016); “Russian MP’s son convicted of hacking scheme”, BBC, 26 Aug. 2016.

  75. 75.

    Notice 2014–21 of 25 Mar. 2014.

  76. 76.

    Chris Baraniuk, “Bitfinex users to share 36% of bitcoin losses after hack,” BBC, 8 Aug. 2016.

  77. 77.

    As in the case of the hacker who made off with approx. 3.6 million ether belonging to the Decentralized Anonymous Organization (DAO) on 17 June 2016, discussed in “The DAO: Theft is property,” Economist, 25 Jun. 2016, 58.

    See also, “Bitcoin enjoys end of year price surge”, BBC, 23 Dec. 2016, on the drastic increase in the value of bitcoin to a 3-year high of approximately US$900 each. According to the news report, the majority of bitcoin currency trading takes place in China, the world’s most populated nation State, where local laws limit the amount of fiat foreign currencies Chinese can acquire. Bitcoin thus offers an alternative to circumvent such restriction under Chinese laws and, with the long-term depreciation of the Chinese Yuan, bitcoin also becomes a “safer” alternative to the Yuan and is much in demand. Another report reveals that companies in several parts of Africa may now send and collect business payments to and from their counterparts in China in bitcoin (Sophie Morlin-Yron, “Could a digital currency bring Africa closer to China?”, CNN, 23 Dec. 2016).

  78. 78.

    The RuneScape case, Supreme Court, 31 Jan. 2012, LJN: BQ9251, J. 10/00101. See also the Habbo case decided by the Court of Amsterdam in 2009 (The Habbo case, Rechtbank Amsterdam, 2 Apr. 2009, LJN: BH9789, BH9790, BH9791). The Habbo case and the judgments of the lower Dutch courts in the RuneScape case are analyzed in Arno R. Lodder, “Conflict resolution in virtual worlds: General characteristics and the 2009 Dutch convictions on virtual theft” in Virtual worlds and criminality, eds. K. Cornelius and D. Hermann (Berlin: Springer, 2011), 79; Litska Strikwerda, “Theft of virtual items in online multiplayer computer games: an ontological and moral analysis”, Ethics Inf. Technol. 14 (2012): 89.

  79. 79.

    Budapest Convention Explanatory Report, para. 95.

  80. 80.

    Ibid.

  81. 81.

    Ibid., para. 97.

  82. 82.

    Ibid., para. 99.

  83. 83.

    This seems to be the explanation in ibid., para. 103.

  84. 84.

    Ibid., para. 100.

  85. 85.

    Ibid., para. 102.

  86. 86.

    Ibid., para. 105.

  87. 87.

    Julian Ding, “Internet Regulation’ in Legal Issues in the Global Information Society, eds. Dennis Campbell and Chrysta Bán (Dobbs Ferry, NY: Oceana, 2005), 306 et seq.

  88. 88.

    Roth v. United States, 354 U.S. 476 (1957).

  89. 89.

    Miller v. California, 413 U.S. 15, 24 (1973). Cf. also Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), where the US Supreme Court held two provisions of the Communications Decency Act of 1996 to be unconstitutional. These provisions sought to protect minors from harmful material on the Internet. Title 47 U. S. C. A. § 223(a) (1) (B) (ii) (Supp. 1997) criminalized the “knowing” transmission of “obscene or indecent” messages to any recipient under 18 years of age. §223(d) prohibited knowingly sending or displaying to a person under 18 any message that, in context, depictsed or described, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. The Court held that the “indecent transmission” and “patently offensive display” provisions abridged the freedom of speech protected by the First Amendment to the US Constitution because they, among other things, did not allow parents to consent to their children’s use of restricted materials; were not limited to commercial transactions; failed to provide any definition of “indecent” and omitted any requirement that “patently offensive” material lack socially redeeming value; neither limited their broad categorical prohibitions to particular times nor based them on an evaluation by an agency familiar with the medium’s unique characteristics; were punitive; applied to a medium that, unlike radio, received full First Amendment protection; and could not be properly analyzed as a form of time, place, and manner regulation because of their content-based blanket restriction on speech.

  90. 90.

    458 U.S. 747, 764 (1982).

  91. 91.

    535 U.S. 234 (2002).

  92. 92.

    “Europol uncover major online child abuse network”, Al Jazeera, 24 Aug. 2016.

  93. 93.

    Budapest Convention Explanatory Report, para. 114.

  94. 94.

    US Dept. of Justice, Press Release (30 Sept. 2014).

  95. 95.

    For US law, see 18 U.S.C. §2261A and United States v. Bowker, 372 F.3d 365 (6th Cir. 2004).

  96. 96.

    For US law, see 18 U.S.C. §875(c) and United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997).

  97. 97.

    “Kevin Ballaert, ‘Revenge-Porn Site Operator, Sentenced To 18 Years,” Huffington Post, 3 Apr. 2015.

  98. 98.

    Budapest Convention Explanatory Report, para. 120.

  99. 99.

    Ibid., para. 122.

  100. 100.

    Ibid., para. 125.

  101. 101.

    Guidance Note on provisions of the Budapest Convention covering botnets, adopted by the 9th Plenary of the T-CY (4–5 Jun. 2013).

  102. 102.

    Guidance Note on DDOS attacks, adopted by the 9th Plenary of the T-CY (4–5 Jun. 2013).

  103. 103.

    Guidance Note on Identity theft and phishing in relation to fraud, adopted by the 9th Plenary of the T-CY (4–5 Jun. 2013).

  104. 104.

    The scale of the data breach at Yahoo was the largest, followed by the ones involving MySpace accounts (359 million), Linkedin accounts (164 million), Adobe accounts (152 million), Badoo accounts (112 million), VK accounts (93 million), Dropbox accounts (68 million), tumblr accounts (65 million), iMesh accounts (49 million), Fling acounts (40 million), and Last.fm accounts (37 million) (“Yahoo ‘state’ hackers stole data from 500 million users”, BBC, 23 Sept. 2016). Yahoo subsequently disclosed that there was a separate hacking attack dating back to 2013, stealing names, telephone numbers, passwords, and e-mail addresses from over one billion Yahoo user accounts although these stolen data were not put on sale by the hacker(s) (“‘One billion’ affected by Yahoo hack”, BBC, 15 Dec. 2016; “Yahoo suffers world’s biggest hack on 1 billion users”, Al Jazeera, 15 Dec. 2016).

  105. 105.

    Guidance Note on Critical information infrastructure attacks, adopted by the 9th Plenary of the T-CY (4–5 Jun. 2013).

  106. 106.

    Guidance Note on new forms of Malware, adopted by the 9th Plenary of the T-CY (4–5 Jun. 2013).

  107. 107.

    Budapest Convention Explanatory Report, para. 134.

  108. 108.

    This was due to the lack of consensus among its draftsmen on this point. Ibid., para. 135.

  109. 109.

    Noah C.N. Hampson, “Hacktivism: A New Breed of Protest in a Networked World”, Boston Coll. Int’l & Comp. L. Rev. 35 (2012): 511, 514–515.

  110. 110.

    E.g., the UK Computer Misuse Act of 1990, sections 1, 2, and 3 (Hampson, ibid., 528–530).

  111. 111.

    For an introductory analysis on this point, see, Hampson, ibid., 526–528, 530 et seq.

  112. 112.

    Cybercrime Convention Committee (T-CY) Cloud Evidence Group, Criminal justice access to electronic evidence in the cloud – Informal summary of issues and options under consideration by the Cloud Evidence Group (17 Feb. 2016), 1.

  113. 113.

    Budapest Convention Explanatory Report, para. 215.

  114. 114.

    Ibid., para. 207.

  115. 115.

    S. 21(4) (b), RIPA.

  116. 116.

    S. 22(2), RIPA.

  117. 117.

    Budapest Convention Explanatory Report, para. 245, cites the offence of illegal access under Art. 2 and that of data interference under Art. 4 as examples of those offences probably incurring the maximum penalties of less than 1 year of deprivation of liberty.

  118. 118.

    Ibid., para. 294.

  119. 119.

    Ibid., para. 297.

  120. 120.

    Giang Hoang Vu, who was extradited from the Netherlands, pleaded guilty to the charge of conspiracy to commit computer crimes. There were two other accused in this case. Viet Quoc Nguyen, another Vietnamese residing in the Netherlands, remained at large. David-Manuel Santos Da Silva, a Canadian citizen, was charged with conspiracy to commit money laundering. (“US data breach: Prosecutors charge alleged hackers,” BBC, 6 Mar. 2015).

  121. 121.

    McKinnon v. Government of the United States of America and Others [2008] UKHL 59. See also, Brenner, Cyberthreats, 45–49.

  122. 122.

    On the other hand, Lauri Love, who has Asperger syndrome, was ordered by the Westminster Magistrates’ Court on 16 Sept. 2016 to be extradited to the US to stand trial in three indictments that between the period Oct. 2012 to Oct. 2013, he, working with others, made a series of cyber-attacks on the computer networks of private companies and US Govt. agencies, (including the US Federal Reserve, US Army, US Dept. of Defence, Missile Defence Agency, NASA, Army Corps of Engineers, Dept. of Health and Human Services, US Sentencing Commission, FBI Regional Computer Forensics Laboratory, Deltek Inc., Department of Energy, Forte Interactive, Inc.) in order to steal and then publicly disseminate confidential information found on the networks, including what is referred to as personally identifiable information (“PII”). The Court held that it would be in the interest of justice for the case to be tried in the US and, while acknowledging Love’s physical and mental health problems, he could be cared for by medical facilities in the US prison (Govt. of the United States of America v. Lauri Love, Westminster Magistrates’ Court (N. Tempia, J.), 16 Sept. 2016 (unreported)).

  123. 123.

    Explanatory Report on the Protocol, para. 4.

  124. 124.

    Ibid., para. 44.

  125. 125.

    Intelligence and Security Committee of Parliament (UK), Report on the intelligence relating to the murder of Fusilier Lee Rigby (25 Nov. 2014), 150, para. 455 (iii). With respect to the additional, cumbersome, and time-consuming requirement under the US Electronic Communications Privacy Act (ECPA) for requests by foreign law enforcement authorities to be presented to a US judge and meet the US due process standard, see criticisms in Andrew K. Woods, “Against Data Exceptionalism”, Stanford L. Rev. 68 (2016): 729.

  126. 126.

    “Chinese hackers arrested after US request,” BBC, 12 Oct. 2015.

  127. 127.

    Jane Wakefield, “Huge raid to shut down 400-plus dark net sites,” BBC, 7 Nov. 2014.

  128. 128.

    TOC Convention, Arts. 2, 5, 6, 8, and 23.

  129. 129.

    Christian Czosseck, “State Actors and their Proxies in Cyberspace,” in Peacetime Regime, 1 at 6–7.

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    Kriangsak Kittichaisaree

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Kittichaisaree, K. (2017). Cyber Crimes. In: Public International Law of Cyberspace. Law, Governance and Technology Series, vol 32. Springer, Cham. https://doi.org/10.1007/978-3-319-54657-5_7

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