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The Concept of Cybercrimes - Is it right to analogize a physical crime to a cybercrime?
by Brett Burney

Digital Crime (conceptualizing crime that occurs in Cyberspace)

Now we come to the fundamental fulcrum of this paper – is it possible to simply apply the common and civil law notions of crime to Cyberspace? Will individual Constitutional rights be denied if this is done? Or will we have to develop a modified concept of crime for us to prosecute actions that occur in Cyberspace.

Admittedly, this sounds like the stuff for good science fiction – space rouges flying around in a virtual reality committing crimes that exist in the physical world in their heads (or in Cyberspace). But before this notion is dismissed as a fictional question, we must give it at least a respectable moment of our time before we accept or reject the question on an intelligent level.

How is a crime committed in Cyberspace?

à By one’s and zero’s, digital bits, electronic impulses, on’s and off’s.

Burglary in physical space involves a person physically breaking and entering a physical dwelling. If we apply this crime to Cyberspace – the above example where a computer user in New York remotely accesses a computer in Texas – the only thing that “breaks” and “enters” into the Texas computer are digital bits, one’s and zero’s. A physical person in this situation merely sets the digital bits into motion – either immediately while he is sitting at the New York computer, or later with the use of some other kind of program.

If we say that cyber-burglary is not a crime, then some would argue that a person shooting a gun is not a crime. When a person pulls the trigger of a physical gun in the physical world, it is the bullet that ultimately travels through physical space and commits the physical penetration of a physical person. In Cyberspace, the computer user in New York merely taps commands at his keyboard that set digital bits into motion that do the actual accessing of the Texas computer. It is illegal for a person to set a bullet in motion that physically penetrates another person. Why? Because there is a harm to be protected – first the harm of a person’s physical body to be physically penetrated by a foreign object, second, the harm of the person suffering some resulting affliction or ultimately death. These harms are the immediate result of the physical penetration of the bullet. What is the immediate result of digital bits from a New York computer accessing a computer in Texas? The actual digital bits themselves do nothing more than cause a reaction – either because they command the Texas computer to respond a certain way or the Texas computer rejects the digital bits. If the New York user ultimately accesses the Texas computer and modifies the information contained on the computer, then we might have a bigger issue. Let us say that the Texas computer contained medical information for patients at a hospital. If the New York computer user modified the digital bits on the Texas computer that comprise the medical information of a patient, for example, to make the information require a different medication for the patient that what was prescribed, the patient could suffer with sickness or even death. This action could be achieved if the person physically broke and physically entered the hospital and changed the information at the computer that physically resided at the hospital. The same result would be achieved. So what is different here? The lack of physical presence. Do we merely say that there is NO difference between these two scenarios and prosecute both people the same way? Does Cyberspace merely become the tool that a criminal uses to conduct his crime?

If we decide to apply physical crimes such as common-law burglary to Cyberspace, then we HAVE to make a COMPLETE and FULLY SUCCESSFUL analogy between the physical properties and Cyberspace properties. With burglary then, we would have to make the COMPLETE and FULLY SUCCESSFUL analogy between a physical “dwelling” and a computer (which includes servers, computer systems, networks, etc.). For those people who can make this analogy completely and successfully, there is no more need for analysis – it stops there and all Cyber-crimes are prosecuted the same as physical crimes. But for others, more analysis is needed. Are we as society ready then to regard the collection of digital bits the same as a physical “dwelling”?

It appears that we have two options:

1) to apply existing criminal law to Cyberspace, or

2) to create some new framework, or set of laws, to encompass the concept of Cyberspace.

The problem with the first option is that there might be some crimes that can exist entirely in Cyberspace that do not have an appropriate analogy in physical space, and therefore, do not have an appropriate prohibition against their commitment. What would we do in these situations? Do we juggle arguments for both sides until some analogy is squeezed to fit? Do we allow judges and lawyers to create a list of which Cyber-crimes analogize with physical crimes and use that as a standard?

But there are problems with the second option as well. For the crimes that DO have an appropriate physical analogy, it would be fruitless to create a new prohibition. Judges attempting to decide Cyber-crime cases would be helpless until the appropriate legislature passed an appropriate law, and this does not fare well for our society. Even assuming that the “real world legal system” can be made to fit the paradigms of behavior in Cyberspace, it simply is not practical to do so except in the most obvious and serious circumstances.[1] If the analogy is obvious, then the application of the appropriate criminal statue would be obvious as well.

Use caution

My hope is that this paper has demonstrated a curious dilemma – how to conceptualize crimes that occur in physical space in Cyberspace. In Cyberspace, everything that exists can be continuously broken down until there are only two numbers – one’s and zero’s. The world of Cyberspace then only exists as numbers. The vast web that has been woven called the Internet facilitates the transmission of these one’s and zero’s.

So to return to our ultimate question again – can we conceptualize a criminal action that occurs in Cyberspace as we do a criminal action in physical space? One might say that the one’s and zero’s of Cyberspace are merely the instruments used to commit a crime in Cyberspace. If burglary can be committed in physical space by the act of walking and the movement necessary to “break” into property, then the one’s and zero’s are equivalent to walking and physical movement.

But Cyberspace is not that easy. Humans cannot think in total digital binary terms. We do not see the word processing document in front of use as one’s and zero’s. We instead see the words we are typing. On old mechanical typewriters, we hit a key and a mechanical arm with a letter imprinted upon it flies up and smacks the physical paper, creating an imprint of the letter. In a computer word processing document, you hit a key, the computer interprets the key and the electronic impulse created when the key is pressed into the letter corresponding to that key. This is done for the sake of the human mind since humans cannot operate in the one’s and zero’s that dictate Cyberspace.

In other words, we return to the words of William Gibson: Cyberspace is a “consensual hallucination.” It is a reality that consists of one’s and zero’s. But the reality of Cyberspace is more of a “virtual reality” for us as human beings. What we conceive as “folders” in Microsoft Windows, are actually just allocations on a hard disk or other storage medium for the one’s and zero’s. We are not actually physically opening a “folder” on our computer, but it appears for all intents and purposes that we are. And we refer to our action as “opening a folder.” The action of “opening a folder” appears real to us.

Conclusion

I conclude that it is appropriate to analogize crimes in physical space and Cyberspace. HOWEVER, we must proceed with extreme caution – we must be EVER vigilant to make sure that the analogy is COMPLETE and SUCCESSFUL. Injustice will be committed if crimes in Cyberspace are not completely parsed, using the elements that we as a society have deemed fair and legal. No virtual stone must be left unturned.