By: Sonny Zulhuda
Introduction
Sixteen years after the being revolutionized by the invention of the World Wide Web, the Internet now becomes a common platform of over one billion users in the world who embrace into the cyberspace to exchange information, trade communications and execute commercial transactions. In this sense, the WWW founder Sir Tim Barnes Lee might have reached his prime objective in that the idea of cyberspace becoming a two-way transactional medium had been well achieved; when writing information is as simple as reading it. With the abundant benefits readily acquired by Internet users ranging from scientific researchers to trade merchants, from university students to corporate managers, and from government officials to mothers at home who explores new recipe, however, Sir Tim may have never imagined that today’s cyberspace would also have achieved another ‘reputation’ of being a notorious criminal frontier where stealing data is as easy as acquiring it rather legally. The truth is, the Internet is already very helpful for malicious minds who wish to pursue their malicious intention.
This is where cybercrime gains its limelight. It has filled up so many pages of stories in books, journals, as well as magazines and newspapers. It loaded speakers with so many words to say in conferences and forums, and similarly it has laden legal fraternity with mounting jobs from enacting laws, amending them, and putting them into the realm of enforcement.
Different words are given by legislatures in the world for the cybercrime which includes ‘computer misuse’ (e.g. UK, Singapore, Brunei), ‘computer crime’ (e.g. Malaysia), ‘cybercrime’ itself (e.g. Australia), or a rather specific ‘Internet law’ (e.g. in Japan). All these terms reflect to a criminalization of certain acts that involves computer or computer system, either as medium or as the target or both. Ferrera (2001) describes cybercrime as any illegal act that involves a computer, its systems, or its applications. It is any intentional act associated in any way with computers where a victim suffered or could have suffered a loss, and a perpetrator made or could have made a gain. Meanwhile the US Department of Justices referred cybercrime as any illegal act for which knowledge of computer technology is essential for either its perpetration, investigation, or prosecution.
Benchmarks in Understanding ‘Cybercrime’
Anyone who looks into the semantic nature of cybercrime would have to look at benchmarks. These benchmarks seek to set proper understanding of the issue and thus enable us to take appropriate actions in formulating its legal framework.
First, cybercrime is a crime.
Philosophical debates aside, crime in its most practical and pragmatic nature is those acts from which the perpetrator assumes criminal liability and therefore deserves penal sanctions. Crime is therefore limited to those which are declared to be a ‘crime’ by the law of the state. That is why crime may differ from one country to another: depending on whether or not such act is considered as crime by the law in that particular state. Killing cow, for instance, for whatever reason, is a crime in Nepal, but not in Malaysia. Consuming certain types of drugs is crime in Malaysia but not in the Netherlands. In certain part of China, an unreasonable horning is set to be a criminal offense, while same-sex marriage is a crime in many countries but it is legal in some other parts of the world.
Likewise, cybercrime can differ from one place to another, depending on whether or not certain types of action have been criminalized in such country. On this point, the most obvious diversity one can find in the area of online content regulation. While an online pornography is considered a crime in Malaysia, it can be seen a reflection of one exercising his freedom of expression in America. Conversely, spamming per se can be a straight offense in America but it is not necessarily so in Malaysia (For instance, according to Malaysian Communications and Multimedia Act 1998, in order for the spammers to be prosecuted, it has to pass, among other things, ‘annoyance’ test).
Secondly, cybercrime affects cross-board targets
In order to understand cybercrime more properly, one also needs to highlight that it is not an exclusive type of crime. Traditionally, crimes had been divided into certain distinctive categories, such as crime against body (includes murder, manslaughter, infliction of injuries, attack and harassment, criminal defamation, as well as attack on modesty), crime against property (includes theft, robbery, misappropriation, wrongful conversion, damage to property, extortion, cheating and criminal breach of trust), crime against public tranquility (includes causing public disturbance, acts against public norm and morality and public policy) and last but not the least, crime against the state (such as treason, inciting hatred against the king or authority, and conspiracy to rebel). This categorization has been useful to enable the enforcers identify the interests and/or party(s) that are at stake in any criminal incidents so as to appropriate suitable punishments and/or remedies.
Cybercrime, on the other hand, is a common term that blends the above traditional categories into one umbrella: thus one can find under this term topics belonging to crime against body such as cyber harassment, cyber stalking and online defamation; crime against property such as online fraud, phishing, identity theft, online extortion, sabotage to computer networks, or even the intrusion to computers or computer networks; crime against public tranquility such as online pornography, online child pornography, cyber-sex services, or hatred emails; and also crime against the state that includes cyber terrorism. The bottom-rule here is, with the convergence of technologies represented in the cyberspace phenomenon, the crime has also been converged along and take place in the cyberspace with a common name of ‘cyber crime.’
Thirdly, the role of computer in crime
Given the above benchmark, so what is it that commonly binds the diverse crimes together under one umbrella? This is the third point one needs to understand: which is the significant role of computer or computer system in the pursuance of crime. An Australia-based cyber crime practitioner Lim (2002) reckons that there are three distinct roles computer can play in any criminal case. First, computer becomes a target of an offense. This occurs when the criminal act was targeted at causing unauthorized intrusion, modification, or damage to computers or computer system. This includes hacking, web defacing, distributed denial of services, spreading virus and worms (well, creating/making them may not necessarily be an offense itself!), and also creating damage to computer systems by sabotage or otherwise. Secondly, the computer acts as a storage device that facilitates albeit minimally. Here the computer may be incidental to an offense, but still significant for the enforcement purposes. For instance, drug traffickers or money launderers may store data pertaining to their transactions or criminal partners in electronic form and stored in computer system. The third role, in which computer plays more significant role is when the computer itself is used as a medium for the crime. This includes instances of online fraud, cyber porn, online harassment, unlawful sale on the net of prescription drugs or obscene materials and unauthorized interception of online communications. In line with this benchmark, an online infringement of intellectual property rights can also add to the list of cybercrime under the third category.
(To be continued)
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