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>chapter:4 cybercrimes against persons There are so many ways people can use cyberspace to injure each other it wouldbeimpossibletocatalogthemallinonechapter.Instead,thischapter uses some of the more common, and more egregious, online crimes against persons to illustrate the legal issues that arise in this context. It is divided into two parts: psychological harm cybercrimes and physical harm cybercrimes. Psychological Harm Cybercrimes Criminal law has historically not concerned itself with psychological— or emotional—harms; to the extent law concerned itself at all with these harms,theywereconsignedtothecivilarena.Sothosewhobelievedtheir reputations or honor or even their feelings had been damaged by what someone else did either sued the perpetrator for damages or got over it. Criminallawhistoricallyfocusedon“hard”harms:physicaldamageto personsorproperty.1 Itfocusedontheseharmsbecausetheyarenecessarily the first priority for a society. Societies must keep the infliction of such harmsundercontrolortheywilldisintegrate;asfailedstatesdemonstrate, humans cannot maintain the social and economic activities that are essentialtotheirsurvivalinanenvironmentinwhichpeoplearefreetoprey 94 | cybercrime and the law on each other. Criminal law is the device societies use to keep those who would prey on others under control; law enforcement officers implement the dictates of criminal law and, in so doing, maintain the base level of stability a society needs to survive and prosper. In the twentieth century—especially in the latter part of the twentieth century—U.S. criminal law began to target some “soft” harms, as well as thehardharmsithadalwaysdealtwith.Unlikehardharms,whichinvolve tangible injury to persons or property, soft harms are more difficult to categorize. Essentially, they involve inflicting some type of injury to any of several interests, including affectivity (or human emotion). In the sections below we will examine two types of soft harm crimes, one old and one new. threats Threats became a crime under English law in 1754, when a statute made it a crime to send a letter threatening to “kill or murder any of his Majesty’s . . . subjects, or to burn their houses or other property.”2 This threat crime came to the United States with the English colonists and has been incorporated into federal law and the laws of every state. There is some dispute as to whether threat crimes really target soft harms. Some say threat crimes fall into the category of what the law calls an inchoate crime, or incomplete, crime. Attempt is an inchoate crime; it criminalizes unconsummated efforts toward the commission of a crime. So, assume the FBI learns that John Doe intends to rob the First National Bank (FNB). The FBI observes Doe as he “cases” the FNB and makes other preparations and tracks him as he heads to the bank on the day he intends to commit the crime. FBI agents arrest him outside the bank before he is able to begin the process of robbing it. Doe will be charged with attemptingtorobthebank ;hecannotbechargedwithrobbingitbecausehenever got the chance to do that. Modern criminal law criminalizes attempts on the theory that it protects public safety. If we did not criminalize attempts, the FBI would have towaitforDoetorobthebankandtrytoarresthimafterward.Asidefrom letting him take money that is not his, this could expose people in the bank to the risk of death or serious injury if something went wrong in the robbery. Criminal law developed inchoate crimes like attempt to give law enforcement the ability to intervene and stop crime before it can occur. Cybercrime against Persons | 95 The quid pro quo for letting law enforcement do this is that the criminal can only be charged with attempting to commit the crime; so Doe will be charged with attempted bank robbery, which carries a lower penalty thanacompletedbankrobbery.(Thepenaltyforattemptislowerbecause the perpetrator failed to inflict the harm that results from the completed crime.) Some say threats are inchoate offenses, on the premise that a threat is the first step in an attempt to commit a target crime, for example, robbing a bank or hurting someone.3 Others say threat crimes are not inchoate crimesbuttargettheinflictionofacompleted,thoughsoftharm;theyprotect the victim “from fear and disruption.”4 The U.S. Court of Appeals for the Sixth Circuit had to decide which view was correct in an early—and disturbing—cybercrimecase:UnitedStatesv.Alkhabaza/k/aJakeBaker.5 Inthefallof1994,JacobAlkhabaz,whousedhismother’snameandwas known as Jake Baker, was an undergraduate at the University of Michigan . In October, he began submitting stories depicting the rape, torture, and murder of young women to the usenet group. One of the stories depicted—in graphic detail—the rape, torture, and murder of one of his classmates, a woman courts referred to as Jane Doe. This story, like the others Baker posted, are notable both...


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