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>chapter:3 cybercrimes against property Instead of being the target of a cybercrime, a computer can be a tool that is used to commit a cyberanalogue of a traditional crime, such as theft or fraud. In tool cybercrimes, the computer’s role is analogous to either the gun used to rob a bank or the implements a burglar uses to break into a building. In either instance, the computer is merely a device the cybercriminal employs to commit a crime involving computer technology but not directed at a computer “victim.” In tool crimes, then, the computer plays a lesser but still far from insignificant role in the criminal activity. Law has approached target and tool cybercrimes differently. Target cybercrimes generally required the adoption of new laws because the conduct involved and the harm inflicted by a target cybercrime was not encompassedbytraditionalcriminallaw.Toolcybercrimesgenerallyhave not required the adoption of new, cybercrime-specific laws because they involve using computer technology to commit what is already a crime . . . which might lead one to wonder why they should require any new law. The extent to which a particular tool cybercrime requires modifying existing law or adopting new law is a function of the particular crime at issue.Thischapteranalyzestheextenttowhichtraditionalcriminallawis adequate to deal with the various tool cybercrimes. But first, it is instruc- 58 | cybercrime and the law tive to examine a tool cybercrime that was committed a decade ago but still illustrates how the use of computers can challenge existing law. Theft? Fraud? . . . In2001,someoneaccessedtheserversusedbytwoonlinecasinosandmanipulated the gambling software to alter the poker and video slot games.1 The games were set so that, for anyone playing, “every roll of the dice in craps turned up doubles, and every spin on the slots generated a perfect match.” During the “few hours” the manipulation was in effect, 140 gamblers won $1.9 million, which the casinos dutifully paid out. Noonewaseverprosecutedforthemanipulation,probablybecausethe casinoscouldnotidentifytheperpetratorordidnotwanttogivetheevent any more publicity than necessary. For the purposes of analysis, though, it is useful to assume that the casinos were able to identity the perpetrator —whom we will call Robin Hoode—and law enforcement was able to apprehend him. The question this fictional scenario then presents follows : what, if anything, can Hoode be charged with? One possibility is theft, because it appears, at least at first glance, that the casino lost something of value ($1.9 million, to be exact). In criminal law, theft is the “taking and carrying away of the personal property of another with intent to steal the same.”2 The problem with characterizing what Robin Hoode did as theft is that he did not “take and carry away” personal property belonging to the victimized casinos. People commit theft to enrich themselves; they take someone’s property so they can use it or sell it. Robin Hoode did not do either of these things; he never took possession of the money the casino paid out and therefore never personally benefited from the payouts. The fact that Robin Hoode did not personally benefit from manipulating the software is the primary legal obstacle a prosecutor would face in convicting him of theft. But there is also an evidentiary issue: how could theprosecutorprovebeyondareasonabledoubtthatthosewhowonwhen the manipulation was in effect would not have won had it not been in effect ? The odds in casinos favor the casinos, but people still win in honest games, and it is reasonable to assume these casinos ran honest games. It could, therefore, be difficult for a prosecutor to convince a jury, beyond a reasonabledoubt,thatwhathappenedcouldnothavehappenedbutforthe Cybercrimes against Property | 59 manipulation of the software. If a prosecutor could not prove this, then Hoode would have to be acquitted. Fraud is another possible charge. Like theft, fraud is a property crime; both involve the unlawful acquisition of property belonging to another. The difference between the crimes lies in how the perpetrator (thief or fraudster)obtainstheproperty:Thethieftakesthepropertyfromthevictim without his or her consent; in aggravated theft (or robbery), the thief uses force to take the property. The fraudster uses deception to persuade the victim to hand the property over willingly; the crime of fraud was originally known as “false pretenses” because the victim gives money or property to the perpetrator under the misapprehension that certain circumstances (e.g., it is being used to buy the Brooklyn Bridge) exist when they, in fact, do not. Centuries ago, English common law developed fraud as a separate crime because those who tricked a victim into handing over property voluntarily could not be prosecuted for theft.3 Fraud is to...


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