Misuse of criminal law

Student Found Guilty Of 'Disturbing The Peace' For Sending Nasty Political Email To Professor Techdirt: "Student Found Guilty Of 'Disturbing The Peace' For Sending Nasty Political Email To Professor" (TechDirt, 18 June 2009)

How sending an e-mail can breach the peace, I am puzzled. It was not a collective e-mail, say to the whole of the University, what would have justified (maybe) the analogy of the public forum. At most, the e-mail, if repeated at least once, would fall within harassment, but certainly not breach of the peace.
Disciplinary actions might also be foreseen if the university charter of conduct was breached

Distorting offences

"Guy Convicted Of Hacking For Uploading Naked Picture Of Himself" (TechDirt, 7 May 2009)

Cyberbullying: worth criminalising?

I just thought that this post was well written and interesting for lawyers. It asked the basic questions before legislating once more: are they already some offences? do they fit the facts or can they without the definition being distorted? is it worth creating a new crime or do we respond emotionally to an issue rather than with objectivity?

"What is Cyberbullying Anyway?"(TechDirt, 11 May 2009)

The law, especially criminal law, has symbolic aspects. But in no way should it be distorted or used purely on those grounds... Justice is not simply about appearing to defend the victims. "Prosecutors Want To Give Lori Drew 3 Years In Jail For Symbolic Reasons" (TechDirt, 7 May 2009)

Virtual worlds - copyrights claims to be sustained?

Not directly linked to criminal law, despite the offence of piracy that could appear, the opinion of the Electronic Frontier Foundation attorney Fred von Lohmann is of interest as it questions the parallel made between real laws/worlds and virtual worlds. Applying copyrights laws to virtual worlds like Second Life creates havoc as even publishing the view of a street could infringe a user's copyright. My question is this - and so far, I have no answer-: is it the principle of applying real world law that fails, or is it copyrights law themselves that are completely inadapted to the digital age (but not non-copyrights laws) as the Pirate Bay case illustrates?

"EFF Agrees That Copyright In Second Life Is A Mess" (TechDirt, 4 May 2009)

Uses of false identity - the boundaries of criminal law

Distorting criminal offences has always been a temptation when the law does not fit exactly the fact. Except that criminal law is bound by the principle of strict interpretation and reasoning by analogy should not be allowed. It is thus reassuring to see that the use of a fake identity created from "scratch" does not fit the offence of ID fraud as defined in the US. This is not surprising given the definition of the offence:

• "knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law;"
• Identity Theft and Assumption Deterrence Act of 1998, amending Section 1028(a) of title 18, United States Code

And yet the US prosecution managed to claim a different interpretation up to the Supreme Court. What a waste! "Supreme Court Tells Gov't It Can't Use ID Fraud Laws Against Illegal Immigrants" (TechDirt, 5 May 2009)


The use of a fake identity, again fictional rather than of a real person, let to another story, as sad and distressing as the previous albeit for different reasons. This time, the fake identity led to the recipient of the 'friendship' to commit suicide. The law is indeed powerless as so far ID fraud has been built on the use of a real identity but by another person.

"Congressional Rep Wants To Put Internet Trolls In Jail" (TechDirt, 6 May 2009)


THe two cases certainly raise issues of the adaptability of criminal law. Fraud and ID fraud are offences targeting the use of real identity with the aim for fraud to obtain money. Phishing is just an adaptation to the internet of the traditional means to commit fraud. (see "Facebook fends off two days of phishing attacks", ZDnet.co.uk, 1 May 2009)
The protection of a person's feelings with the use of this false identity was never taken into consideration. Should it with the internet? I would be reluctant to affirm so. The two cases reported here revolve around either immigration issues or the use of internet by children or vulnerable people. The latter is a matter of education: not to take at face value what is said online and understanding that anybody can invent an identity purely fictional like in games or Second Life.

Child porn and prosecution policy: bias charges?

The story is problematic for several reasons:

1.1) the charges, as reported below, should never have existed as the image is not even pornographic - this is purely a legal argument/point

1.2) the charges should not have been started either given the context of the case. The principal is the one who has ordered the investigation; his employee reported it and obviously the student's mother had an interest in damaging his reputation. Because he was a man, it was easy to label him (and libel). That the prosecutors refused to see the context and proceeded with the charges is contrary to any good policy of prosecution - that the policy argument/point

2) the background of the case is those children/teenagers sending photos of themselves or others nude via mobile phones. Two issues: what kind of society are we where it is viewed as trendy to be exposed nude to everybody? I am not prude, but frankly, I don't see the point; the offence of child porn is protect children against adults: can it be to protect children against themselves?

"School Administrator Accused Of Child Porn Because He Investigated Sexting At School" (TechDirt, 6 April 2009)

Criminalisation -

Well, it might be new for West Virginia, but in some countries it's not. Posting false information can indeed be defamation, but also a misdemeanour depending what one views as important or not.

"West Virginia Looks To Criminalize Online Harassment" (TechDirt, 1 April 2009)

For piracy, I would agree that the laws are inadequate because the principle they try to enforce is outdated. Thus both Sweden and France should have thought twice.
"Swedish Antipiracy Law Goes Into Effect... Internet Traffic Drops" (TechDirt, 1 April 2009)

criminal law - some patterns of theft disappear

Self-explanatory - US based (FBI) "Car Stereo Theft Doesn't Pay What It Used To" (TechDirt, 27 March 2009)

Piracy, filtering and the place of criminal law

France is trying to create a graded response to piracy obliging ISPs to filter the internet and the users' access to be blocked in case of infringement. It's still a Parliament bill but very controversial.
"Piratage : les moteurs bientôt soumis au filtrage du Web ?" (JDN, 6 March 2009)
I'm not a copyrights' specialist but the story, like everything that I can read about piracy issues (thinking of the Swedish(?) case of Pirate Bay), brings to mind several comments:

1) I don't think copyrights should be violated per se and should necessarily disappear; however, I don't believe either that the system can work the way it was created and generalised a good century ago. The internet changed the background, the landscape in which copyrights operated. Works are now easily available - They are cheap but often of good quality because of the nature of digital technology - the immanent nature of the internet allows for permanent and vast diffusion of works whether illegal or legal

2) thus, criminal law cannot be the response to a problem which dimensions changed because of the internet. Piracy always existed. Not the internet.
In other words, reflexion on copyrights and availability of creative works should be primary rather than a push towards investigation, prosecution and sentencing.
"A la veille du vote des députés : retour sur la future loi ‘création et Internet’ " (Juris.com, 22 February 2009)

And filtering is not the answer.
the IWF story in the UK illustrates well the controversy "IWF chief: Why Wikipedia block went wrong " (ZDNet.co.uk, 20 February 2009)
The following article (in French) reveals a study made about ISPs and their perception of filtering for piracy if the French bill is enacted: most won't do it and if they do, they'll certainly not support the costs (= the Government has to do it!) "Ce que pensent les FAI du filtrage du Web" (JDN, 4 March 2009)

3) compared to other crimes, frankly, piracy is the least important. Especially when those benefiting copyrights are more often than not the big companies and not even the authors themselves. If the same amount of energy and money were put into fraud or child porn, cybercrime would be greatly reduced. Which say something about our society: better to protect property of big businesses than to protect the persons and their individual well-being. Problematic no?

Obscenity (UK) and outsiders' view

The new offence of extreme porn attracts more media coverage than Government's funding. So is there a point in enacting such laws if they cannot be enforced? Let's hope one day Government will wake up to cybercrime's threats...
"Police will not target offenders against law on violent porn" (The Guardian, 26 January 2009)

The same question of "why legislation" was raised, but for different reasons: "UK Citizens Worked Up About Broad And Vague Obscenity Law" (TechDirt, 29th January 2009)

Defamation: civil or criminal matter?

Many legislations have a civil suit and a criminal charge for defamation. The article about Colorado US is interesting in comparison with the proposal in France to stop allowing defamation charges that do not bear for example any hatred.
"Does It Make Sense To Have Libel Be A Criminal Offense?" (TechDirt, 5 December 2008)

New offence?

Unless handling can be applied, which I doubt it could as there is no items held in hands in the traditional meaning of the word; or unless money-laudering laws apply, we are left with a gap for something which is clearly illegal. So new offence to think about?
Cybercrime takes to the cloud (3 November 2008)

Investigations - luck or display of forces?

The main problem of cyberspace is always tracking done the authors of offences. Some crimes will never be solved, unless maybe their authors unveil later on their methods; some may be solved although the more time elapsed the more unlikely there are chances to find the offenders. “The 10 Most Mysterious Cyber Crimes” (26 September 2008)
See also “Cybercrime expert to educate MSU engineers on "Gen Next Terror" (23 September 2008)

Comp with “Second TJX hacker pleads guilty” (24 September 2008) (also under "Second alleged hacker pleads guilty in TJX case") and maybe the silliness of the Palin’s hacker: hacking a high profile person is more likely to create a surge of investigatory reactions and actions than hacking a business, even if no real damage was done. “Palin Hacker's IP Address Linked to Tennessee College Dorm” (22 September 2008)

Cybercrime sanctions = disciplinary action

an other facet of cybercrime, disciplinary action for what could constitute criminal offense
http://www.crime-research.org/news/10.09.2008/3565/ (10 sept 2008) "Carleton collars hacker"

the law and cybercrime: an illusory pursuit?

Not a new debate I am afraid. Yes the law is behind technology, but has not law always been behind innovation? The question is more likely: can the law adapt to innovations or can it not requiring then new legislation to be enacted? The question is particularly crucial for criminal law as the key principle is that of non-retroactivity.
"Australian High Court Judge Recognizes That Technology Outpaces The Law" (22 February 2008)http://www.techdirt.com/articles/20080222/153544324.shtml

Post-scarcity and virtual worlds

a November post already looked at this economic theory of post-scarcity the founder of TechDirt often explains and discusses. Another article quite interesting for the implications it could have on cybercrime "Kevin Kelly's Eight Key Scarcities" (4 February 2008) http://www.techdirt.com/articles/20080202/210638158.shtml

may not seem related, but I think they are: "More Evidence Of Why Virtual World Economies Are Risky" (6 February 2008) http://www.techdirt.com/articles/20080204/220026172.shtml

Virtual worlds, social networkin, and crime: is it crime?

In virtual worlds like Second Life, can there be fraud or theft with associated real criminal liability? A real question for a virtual world which should be excluded from our physical laws, but is it that simple? Are we going to see criminal law reinvented online?
http://www.techdirt.com/articles/20071202/174819.shtml (3rd December 2007)

The following article seems to confirm we may have to think ahead "Bad Ideas: Trying To Build A Marketplace Of Virtual Goods" TechDirt (18 December 2007) http://www.techdirt.com/articles/20071217/120715.shtml

Another issue will arise with the development of e-currencies: "Virtual worlds driving move to e-payments" http://news.zdnet.co.uk/emergingtech/0,1000000183,39291065,00.htm (26 November 2007)


Bearing more connexion to reality, what about damaging statements in social networking websites that in the physical world do not constitute crime? Should criminal law be involved or should it be regulated by other means? http://www.techdirt.com/articles/20071203/180607.shtml (3rd December 2007)

Why spam is a crime or should be one...

Spam is a regular occurence on IT newspapers or columns. But this case illustrates particularly well why spam should be a crime, independently of its outcome (whether it incites to defraud others)...

http://news.zdnet.co.uk/security/0,1000000189,39290558,00.htm