Become a Criminal with Your Home Computer – It’s As Easy As Pie

Bet you didn’t know just how easy it is to become a bona fide criminal. You can do it from your home computer and hardly break a sweat. Here are some ways to make it easier for you. Or, if you’re so inclined, here’s how you can keep yourself on the right side of the law by knowing what not to do.

There are two reasons to read this article. The first is so that the next time you tread close to the line, you can step back and keep yourself out of jail. The second is so you can ask yourself if, as a society, we’re starting to go overboard.

No Electronic Theft (NET) Act
State Laws – Connecting to Networks
Cyberstalking and Cyberbulling
Pro-IP Act
Digital Millennium Copyright Act (DMCA)
Border Searches
Internet Gambling
Security Breach Disclosure Laws
Tools of a Crime Laws

Laws that affect the use of Internet-connected computers are springing up everywhere at the local, state, and federal levels. You might be violating one of them without even knowing it. This article looks at some of those laws. Of course, it’s just a high-level summary. Don’t take anything here as legal advice. If you have any concern that something you’re doing violates the law, talk with competent legal counsel.

Why We Make Some Actions Criminal

In 1748, Montesquieu wrote in De L’Esprit des Lois (The Spirit of Laws) that “Useless laws weaken the necessary laws.” (He’s also the one who said, “The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy.”)

Fast forward two centuries (and a few years) and we find Ayn Rand writing in Atlas Shrugged that “[Government] declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

Before we begin talking about how you can break the law, let’s take a short (very short) journey through the principles behind laws. (If you find this boring, skip to the first heading.)

We’ll begin with the difference between civil and criminal law. Civil law can take your money away from you. Criminal law can take your freedom as well as your money.

Next point. Why do we make some acts criminal and not others?

It’s clear that it’s in the interest of all people (except perhaps the criminals – or at least the criminals might so argue) to punish those who physically harm others.

Kill someone without justification and society reserves the right to punish you. At the very least we take your freedom. At the other extreme, we take your life.

Hurt someone (without killing them) and we’re just as likely to take your liberty – though not for as long.

What if you don’t actually hurt someone but you do something that could hurt another? We can still toss you in the hoosegow. Drive drunk and – even if you don’t crash into another – we can still put you in the slammer.

Criminal penalties also extend to taking property from others – though we typically don’t punish you as severely if you’ve taken only property and haven’t hurt someone physically. Well, that’s true unless your Bernie Madoff and the amount you took is unbelievable. (How would you like to have his Wikipedia page?)

And Why Other Actions Are Not Criminal

Sometimes people do things that society feels don’t warrant throwing a person in jail but that still infringe on the rights of others. However, we don’t want people settling their differences at high noon in front of the saloon with a pair of six-shooters. So we set up a way for people to resolve their differences in a more civilized setting – the courtroom. (Some may dispute that courtrooms are more civilized, but that’s another story.)

For many years, the Internet was largely unregulated and crimes involving the Internet were on the “final frontier.” Part of that was because of the jurisdictional nightmare in trying to enforce laws when communications crossed not only state lines but also national boundaries. We also debated whether actions on the Internet could really harm others.

That was then; this is now. We’ve finally realized that people can use the Internet to hurt others. In fact, in many ways, the Internet makes it easier to hurt others. It is often easier than using the telephone, the mail or other means of communication. And it is a lot harder to track people down and prove they were behind the crime – no fingerprints, no witnesses and no smoking gun. (Think, Nigerian email scams.)

No Electronic Theft (NET) Act

In the good old days, copyright violations were just a civil matter. You didn’t run the risk of being charged with a crime unless you did it for commercial purposes. The NET act changed that. It is now a federal crime to reproduce, distribute, or share copies of electronic copyrighted works such as songs, movies, games, or software programs – at least if the value of everything you copy or distribute in a 180-day period is more than $1,000. It’s a crime even if you act without commercial purpose and get no private financial gain. You’re a criminal. You may find yourself paying a $250,000 fine and bunking down courtesy of the government for up to five years. Remember that “FBI Warning” at the start of most DVD movies.

The bottom line? Go ahead and burn a single episode of Law & Order from your DVR to a DVD for your own ‘archival’ use. Do it too often, however, and somewhere along the way you’ll cross the line. Put it online where others can download it and you’re definitively asking for trouble. Yes, I know. You probably won’t see the inside of a jail – but that’s not the point is it? When have we as a society crossed the line where the basic values that make the Internet begin to be reduced? You may want to read John Perry Barlow’s classic essay The Economy of Ideas.

State Laws – Connecting to Networks

It’s not just the feds who have laws that impact the use of your computer. States are jumping into the circus as well.

Consider a state law that says you’re a criminal-in-waiting if you knowingly connect to a computer or a network without the owner’s permission. You’d never do that? Ever used an unsecured wi-fi network? Read about a Michigan man who was arrested in 2007 for using a café’s Wi-Fi network from his car. It seems the store owner felt the network was reserved for customers. You can find similar stories in Florida, Illinois, Washington, and Alaska.

Apparently it’s okay if your laptop automatically logs on and you don’t know about it – that isn’t ‘knowingly’. Just don’t use your neighbor’s Wi-Fi connection when yours goes down! (Of course, I’ve not seen too many computers that ‘automatically’ log on without popping up some screen or another that requires some action on your part…)

Cyberstalking and Cyberbulling

Stalking is a serious crime and most people favor laws that punish stalkers. As Internet connectivity has become common, states have come to realize that modern technology makes it possible to stalk someone from afar. Forty-six states now have laws that explicitly include electronic forms of communication within stalking or harassment laws.

Some of the laws, however, are pretty broad.

Arkansas law makes it illegal to send a message by email or other computerized communication system that uses obscene, lewd, or profane language if your intent is to frighten, intimidate, threaten, abuse, or harass another person. Does that include a ‘lively’ discussion on mail lists or forums? How about that e-mail you sent to a company that refused to refund your money when their product turned out to be less than promised? Or the email sent to the girlfriend you just broke up with?

Cyberbullying is similar. Just do a Google search using the terms “Facebook cyberbullying” and you can see how prevalent the problem is – about 353,000 results!

The best policy is the same one you probably apply when your boss says something you find rather offensive. Think before you act. Don’t press the send button until you’ve had a moment (or a night) to think about it. Losing your temper in a face-to-face discussion will rarely land you in jail. Doing it on line can.

Pro-IP Act

On October 13, 2008, President Bush signed the Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP) into law. You can now face criminal sanctions for copyright violations even though the material you copied was not registered with the copyright office.

Forfeiture laws now apply to copyright violations. You probably think of seizure and forfeiture laws in the context of drug enforcement. Those laws let police seize houses, computers, cars, cash, etc from someone they believe deals drugs. Sometimes they don’t have to return the property even if the accused is acquitted. Read an overview of the issues.

Digital Millennium Copyright Act (DMCA)

The DMCA law says you commit a crime when you ‘circumvent’ any technological copy protection – even if you don’t violate a copyright. What does that mean? Use a software program to disable copy protection to make a copy for your personal use and you’re a criminal. And that’s true even if you may legally make a copy. It’s not copying the disk that is illegal. It’s removing the copy protection that can get you in trouble.

You can count on the entertainment industry to argue that it’s not possible to copy most of the DVDs they make without violating the law.

Border Searches

Maybe you slept through civics class in high school. But anyone who watches any of the crime shows on TV knows what the Fourth Amendment is. It protects us from unreasonable searches and seizures. That means the government can’t search our home or car – or computer or iPod and cell phone – unless the government can show a judge there’s a good reason to believe that you’re doing something illegal.

You can forget all that the next time you come back into the states from another country. As a general rule, there is no Fourth Amendment at the border. They can search your laptop, your iPod, your PDA, or your cell phone at the border. In 2008, the Ninth Circuit Court of Appeals said there are only two limits to the government’s authority to search electronic materials at the border. The search may not cause exceptional damage to the property. Second, the search may not be conducted in “a particularly offensive manner.”

“At the border” includes any international airport even if it’s a thousand miles from the border. As you might expect, there are some who disagree with that position. Until the law is settled on this one, think twice about what bits and bytes you’re lugging around the next time you travel overseas (or to Canada or Mexico or the Caribbean…).

Internet Gambling

Like to play poker or bet on the horses from the comfort of your home?

The U.S. Justice Department says that the Federal Wire Act (technically, the Interstate Wire Act of 1961) outlaws all online gambling. The U.S. Fifth Circuit Court of Appeals in 2002 ruled that the Act applies only to sports betting and not other kinds of online gambling. The US Supreme Court hasn’t weighed in yet.

With federal law sort of ambiguous, you probably need to know what your state law is. So, be sure to check out the state and local laws before you make that friendly online bet.

Utah and Hawaii ban all forms of gambling in their states. Nine states specifically restrict online gambling (Illinois, Indiana, Louisiana, Montana, Nevada, Oregon, South Dakota, Washington and Wisconsin). In Washington state, online gambling is a Class C felony punishable by up to five years in prison and a fine of $10,000. Illinois and Louisiana criminalize both the online bettor and the online casino operator. Bettors in Louisiana facing a $500 fine and up to six months in prison and operators facing a $20,000 fine and up to five years. For more information, look here. And if you want a more technical outline you can look at this law review article from 2003.

Security Breach Disclosure Laws

Almost every week it seems there’s something in the news about a company or government agency that has “lost” or had stolen customer information. Imagine if your credit card information was stolen – or your social security number.

Last week I pulled up a credit card statement on line and noticed a $2500 charge that I knew was not mine. I called the bank and they told me the charge was made in France (where I’ve not set foot for over three decades) for car related expenses. They also said they had declined two other thousand dollar charges the same day. Since both my wife and I still have our plastic in hand, this suggests to me that some company I’ve done business with in the past is the victim of theft and has had their security breached.

Forty-four states, the District of Columbia, Puerto Rico and the Virgin Islands have enacted laws that require companies to give notice of security breaches involving personal information. If you run a business, you need to know what your obligation is if your systems are breached or an employee simply leaves a laptop in the car and it is stolen. Sometimes the law applies even if you don’t operate in a state. For example, a 2003 California law requires you to notify California customers of such breaches. You don’t have to have an office in California. And it doesn’t matter whether you’re GM or a Mom and Pop shop.

Tools of a Crime Laws

Some states make it a crime to possess a “criminal instrument” or a “tool of a crime.” This can include anything designed or adapted to commit a crime.

What’s that mean? Let’s say you build yourself a high gain wireless antenna so you can tap into your neighbor’s wi-fi network – without her permission. Hey! She’s not using all that bandwidth. It’s not hurting her is it?

Several years ago, a California sheriff’s deputy made the news when he declared “Pringles can antennas” illegal under such a statute. Uh huh.

Conclusion

Are we going too far? Has government gone beyond protecting people to trying to control the Internet and people’s ability (right?) to communicate? Can you protect without controlling the means of doing harm?

I’m still uncertain.

I am, however, moderately concerned when I see forfeiture laws applied to copyright violations, when I see a restaurant prosecuting someone for snagging its unsecured Wi-Fi signal when they’re not sitting inside the restaurant and when police think a Pringle’s can is any more illegal than a high gain wireless range extender.

Your thoughts?

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