Ch. 10: Cyber Crime

Criminal Negligence

*Criminal Negligence* involves the mental state in which the defendant takes an unjustified, substantial, and forseeable risk that results in harm.

Is the intent to return, or actual return of, embezzled property a defense for the crime of embezzlement?

*No.*

Does an insanity defense enable a person to avoid imprisonment?

*No.* Rather than prison/jail, the defendant will be placed in a mental institution.

Are there only criminal penalties in a RICO violation?

*No.* The government can seek criminal penalties AND civil penalties.

Obtaining Goods by False Pretenses

*Obtaining goods by means of false pretenses* is a form of theft that involves trickery or fraud, such as using someone else's credit-card number without permission.

____ are crimes against persons, crimes that cause others to suffer harm or death.

*Violent crimes* are crimes against persons, crimes that cause others to suffer harm or death.

The Fourth Amendment protects only against searches that violate a person's....

*reasonable* expectation of privacy.

What are the punishments related to RICO?

- $25,000 per violation - Imprisonment for up to 20 years - or both - Any assets (property or cash) that were acquired as a result of the illegal activity or that were "involved in" or an "instrumentality of" the activity are subject to government forfeiture.

[DEFINE] Insider Trading

- A person who possesses inside information and has a duty not to disclose it to outsiders may not trade on that information. - A person may not profit from the purchase or sale of securities based on inside information *until the information is made available to the public.* (Ex: Martha Stewart)

Liability of Corporate Officers and Directors

- Corporate officers and directors are personally liable for crimes they commit - May also be held liable for the actions of employees under their supervision - Under the responsible corporate officer doctrine, a court may impose criminal liability on a corporate officer who participated in, directed, or merely knew about a given criminal violation.

[DEFINE] Entrapment

- Defense against criminal liability - In criminal law, a defense in which the defendant claims that he or she was induced by a public official--usually an undercover agent or police officer--to commit a crime that he or she would otherwise not have committed.

[DEFINE] Duress

- Defense against criminal liability (except for murder) - Unlawful pressure brought to bear on a person, causing the person to perform an act that he or she would not otherwise perform (or refrain from doing something that he or she would otherwise do).

[DEFINE] Immunity

- Defense against criminal liability in which the state grants a defendant immunity from prosecution as a means of gaining more information - Plea-bargain is typically involved

Mistake Defense

- Defense against criminal liability--a *mistake of fact*. - (This is different from a mistake of law which CANNOT be used as a defense as it is just ignorance of the law.) - (Ex: Mistakenly walking off with someone else's briefcase is not theft as theft requires knowledge that the property belongs to another.)

Advance Fee Fraud

- Form of Cyber crime - Consumers order and pay for items, such as automobiles or antiques, that are never deliverd.

Online Auction Fraud

- Form of cyber crime - A person lists an expensive item for auction, on either a legitimate or a fake auction site, and then refuses to send the product after receiving payment - (Alternatively, the wrongdoer may send the purchaser an item that is worth less than the one offered in the auction.)

Information v. Grand Jury

- Information is typically for less serious crimes and is less formal

Defenses to Criminal Liabilty

- Procedural Violations (Ex: obtaining evidence without a valid search warrant) - Self-Defense - Necessity - Insanity - Mistake - Duress - Statute of Limitations - Immunity

What are some exceptions to the Miranda Rule?

- Public Safety Exception: (Ex: A defendant's statements that reveal the location of a weapon would be admissible under this exception.) - A suspect must unequivocally and assertively ask to exercise her or his right to counsel in order to stop police questioning.

Theft

- Sometimes, state statutes consolidate the crime of obtaining goods by false pretenses with other property offenses, such as larceny and embezzlement, into a single crime called simply "theft."

Economic Espionage Act

- The *Economic Espionage Act* makes the theft of trade secrets a federal crime. - Also a crime to buy or possess another person's trade secrets, knowing that the trade secrets were stolen or otherwise acquired without the owner's authorization.

[DEFINE] Beyond a Reasonable Doubt

- The standard used to determine the guilt or innocence of a person criminally charged - A reasonable doubt is one that would cause a prudent person to hesitate before acting in matters important to him or her.

[DEFINE] Phishing

- Type of cyber crime - Online fraud in which criminals pretend to be legitimate companies by using e-mails or malicious websites that trick individuals and companies into providing useful information, such as bank account numbers. SSNs and credit card numbers.

[DEFINE] Worm

- Type of malware - Designed to copy itself from one computer to another without human interaction. A worm can copy itself automatically and can replicate in great volume and with great speed.

Virus v. Worm

- Viruses: require the spreading of an infected host file - Worms: standalone software and do not require a host program or human help to propagate

Three types of bribery are considered crimes:

- bribery of public officials - commercial bribery - bribery of foreign officials

[DEFINE] Virus

- form of malware - Transmitted between computers and attempts to deliberate damage to systems and data

Counterfeit Access Device and Computer Fraud and Abuse Act (CFAA)

- most significant federal statute specifically addressing cyber crime - provides that a person who accesses a computer online, without authority, to obtain classified, restricted, or protected data (or attempts to do so) is subject to criminal prosecution

What are some examples of Public Order Crimes?

- public drunkenness - illegal drug use - gambling - prostitution

Criminal acts fall into 5 broad categories:

- violent crime - property crime - public order crime - white-collar crime - organized crime *cyber crime

What are the major procedural steps in a criminal case?

1. Arrest 2. Booking 3. Initial Appearance 4. Grand Jury or Preliminary Hearing 5. Indictment or Information 6. Arraignment 7. Trial

A reasonable expectation of privacy exists if...

1. The individual actually expects privacy and 2. The person's expectation is one that society as a whole would consider legitimate

The following two elements normally must exist *simultaneously* for a person to be convicted of a crime:

1. The performance of a prohibited act (actus reus). 2. A specified state of mind, or intent, on the part of the actor (mens rea).

Persons convicted of mail, wire, and internet fraud may be imprisoned for up to....

20 years and/or fined.*

Service-Based Hacking

A "software as a service" distribution method used by cyber criminals who rent the online services of cyber criminals to do work for a small price.

[DEFINE] Cyber Crime

A crime that occurs online, in the virtual community of the Internet, as opposed to the physical world.

[DEFINE] Felonies

A crime--such as arson, murder, rape, or robbery--that carries the most severe sanctions, usually ranging from one year in a state or federal prison to the forfeiture of one's life.

A criminal conspiracy exists when....

A criminal conspiracy exists when *two or more people agree to commit an unlawful act and then take some action toward its completion.*

A defendant is ____ if he or she consciously disregards a substantial and unjustifiable risk.

A defendant is *criminally reckless* if he or she consciously disregards a substantial and unjustifiable risk.

Major Procedural Steps in a Criminal Case: Grand Jury

A grand jury determines if there is probable cause to believe that the defendant committed the crime. The federal govt. and about half of the states require grand jury indictments for at least some felonies.

[DEFINE] Misdemeanors

A lesser crime than a felony, punishable by a fine or imprisonment for up to one year in other than a state or federal penitentiary.

[DEFINE] Hacker

A person who uses one computer to break into another

[DEFINE] Double Jeopardy

A situation occurring when a person is tried twice for the same criminal offense; prohibited by the Fifth Amendment to the Constitution

Mens Rea

A specified state of mind, or intent, on the part of the actor "The guilty mind"

[DEFINE] Crime

A wrong against society proclaimed in a statute and punishable by society through fines and/or imprisonment--or, in some cases, death.

According to ____, a court may impose criminal liability on a corporate officer who participated in, directed, or merely knew about a given criminal violation.

According to *the responsible corporate officer doctrine*, a court may impose criminal liability on a corporate officer who participated in, directed, or merely knew about a given criminal violation.

Major Procedural Steps in a Criminal Case: Indictment

An *indictment* is a written document issued by the grand jury to formally charge the defendant with a crime

Major Procedural Steps in a Criminal Case: Information

An *information* is a formal criminal charge made by the prosecutor.

[DEFINE] Computer Crime

Any violation of criminal law that involves knowledge of computer technology for its perpetration, investigation, or prosecution.

For entrapment to be considered a defense against criminal liability, what must occur?

Both the suggestion and the inducement must take place

Necessity Defense

Defense against criminal liability which states that a criminal act was necessary to prevent an even greater harm.

Insanity Defense

Defense against criminal liability which states that because of mental disease or defect, the defendant should not be held responsible for the crime committed

How does embezzlement differ from larceny and robbery?

Embezzlement is not larceny, because the wrongdoer does not physically take the property from another's possession (it was already entrusted to them), and it is not robbery, because no force or fear is used.

[DEFINE] Money Laundering

Falsely reporting income that has been obtained through criminal activity as income obtained through a legitimate business enterprise--in effect, "laundering" the "dirty money".

What are some differences between criminal and civil law?

For criminal law.... - The state is the party who brings the suit - The wrongful act violates a statute that prohibits some type of activity - The burden of proof is beyond a reasonable doubt - The verdict on the case must be unanimous - The remedy is a punishment of some sort (fine, imprisonment, death)

[DEFINE] Cyber Fraud

Fraud committed over the internet - Fraud that involves the online theft of credit-card information, banking details, and other information for criminal use.

What jurisdiction would a cyber crime case be tried in?

Geographic boundaries *do not apply* in cyberspace

How many offenses must one be found guilty of under RICO to be found guilty of "racketeering activity"?

If a person commits two of these offenses, he or she is guilty of "racketeering activity."

Major Procedural Steps in a Criminal Case: Preliminary Hearing

In a court proceeding, a prosecutor presents evidence, and the judge determines if there is probable cause to hold the defendant over for trial.

[DEFINE] Petty Offenses

In criminal law, the least serious kind of criminal offense, such as a traffic or building-code violation.

[DEFINE] Exclusionary Rule

In criminal procedure, a rule under which any evidence that is obtained in violation of the accused's constitutional rights guaranteed by the Fourth, Fifth, and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will *not* be admissable in court. - Fruit of the poison tree

Miranda Rule / Rights

Individuals who are arrested must be informed of certain constitutional rights such as their right to remain silent (5th) and their right to counsel (6th). - If the arresting officers fail to inform a criminal suspect of these constitutional rights, any statements the suspect makes normally will be inadmissable in court.

Receiving Stolen Goods

It is a crime to receive goods that a person knows or should have known were stolen or illegally obtained. - knowledge of the thief, or payment for the goods, is not needed for conviction

[DEFINE] Malware

Malicious software programs designed to disrupt or harm a computer, network, smartphone, or other device.

Is the time of day a burglary occurs a material fact?

No, it is usually immaterial.

[DEFINE] White-Collar Crime

Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage.

How many federal crimes fall under RICO? How many state felonies?

RICO incorporates 26 separate federal crimes and 9 types of state felonies.

What's the difference between larceny and robbery?

Robbery involves force or fear, larceny does not. Ex: picking pockets is larceny, not robbery

Aggravated Robbery

Robbery with the use of a deadly weapon

[DEFINE] Botnets

Short for robot network--a group of computers that run an application controlled and manipulated only by the software source. Usually, the term is reserved for computers that have been infected by malicious robot software. - A form of malware

[[DEFINE] Robbery

The act of forcefully and unlawfully taking personal property of any value from another; force or intimidation is usually necessary for an act of theft to be considered robbery.

[DEFINE] Identity Theft

The act of stealing another's identifying information--such as a name, date of birth, or Social Security number--and using that information to access the victim's financial resources. - Typically a type of cyber crime as it will likely involve the misappropriation of existing credit-card accounts

[DEFINE] Bribery

The crime of bribery involves offering to give something of value to a person in an attempt to influence that person in a way that serves a private interest. - Occurs when the bribe is *offered*. Accepting a bribe is a separate crime.

Major Procedural Steps in a Criminal Case: Arraignment

The defendant is brought before the court, informed of the charges, and asked to enter a pleas. Usually the prosecutor will attempt to get the defendant to enter into a pleas bargain at this stage. Most defendants plead guilty to a lesser offense or receive a reduced sentence for their crime without ever proceeding to trial.

[DEFINE] Embezzlement

The fraudulent appropriation of money or other property by a person to whom the money or property has been entrusted.

[DEFINE] Forgery

The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another. - Also includes: changing trademarks, falsifying public records, counterfeiting, and altering a legal document

[DEFINE] Self-Defense

The legally recognized privilege to protect one's self or property from injury by another. - Only protects acts that are *reasonably necessary* to protect one's self or property - Defense against criminal liability

For violent crimes other than murder, what is a factor when classifying the crime by degree?

The level of pain and suffering experienced by the victim

[DEFINE] Arson

The malicious burning of another's dwelling. Some statutes have expanded arson to include any real property, regardless of ownership, and the destruction of property by other means--for example, by explosion.

Actus Rea

The performance of a prohibited act "The guilty act"

[DEFINE] Plea Bargaining

The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval; usually involves the defendant's pleading guilty to a lesser offense and receiving a lighter sentence.

Grand Theft

The theft of a larger amount of cash or higher-value property

Petty Theft

The theft of a small quantity of cash or low-value goods

Major Procedural Steps in a Criminal Case: Trial

The trial can be either a jury trial or a bench trial (in a bench trial there is no jury and the judge decides questions of fact as well as questions of law.) If the verdict is "guilty," the judge sets a date for the sentencing. Everyone convicted of a crime has the right to an appeal.

[DEFINE] Burglary

The unlawful entry into a building with the intent to commit a felony. Some state statues have expanded burglary to include the intent to commit any crime (not just felonies).

[DEFINE] Larceny

The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. Some states classify larceny as either grand or petit, depending on the property's value.

What is the statute of limitations for murder?

There is *no limitation*

Mail and Wire Fraud

These laws make it a federal crime to devise any scheme that uses U.S. mail, commercial carriers (FedEx, UPS), or wire (telegraph, telephone, television, the Internet, e-mail) with the intent to defraud the public. - Often applied when persons send out advertisements or e-mails with the intent to obtain cash or property by false pretenses.

Racketeer Influenced and Corrupt Organizations Act (RICO)

This statute makes it a federal crime to... 1. Use income obtained from racketeering activity to purchase any interest in an enterprise. 2. Acquire or maintain an interest in an enterprise through racketeering activity. 3. Conduct or participate in the affairs of an enterprise through racketeering activity. 4. Conspire to do any of the preceding activities.

Aggravated Burglary

When a deadly weapon is used in a burglary

Can a corporation be held criminally liable?

Yes.