Aiding or abetting in the commission of cybercrime virus
Others, however, are adamant in their defense of the First Amendment right to free speech. They hold that when any information is deemed to be undesirable or potentially dangerous, therefore unprotected, it makes it that much easier to deem other information to be so, until only points of view held by those in power are permitted to be expressed. If freedom of speech is given up, all other democratic rights are called into question. Identifying angry people before they turn to violence is preferred over suppressing free speech.
Viruses can be created for research, especially by those who write code to protect against viruses. If writing viruses were illegal, the lawful community would not be able to write virus-catching software. The "speech directed to incite imminent lawless action" exception to the right to free speech may not apply either. The Supreme Court Case, Brandenburg v. Ohio, makes it clear that mere advocacy of an illegal action is not illegal where incitement to imminent lawless action is. For example, writing a "how to" manual on building a bomb is protected speech because it does not cause the immediate infliction of harm.
The author does not know who will read his work, nor if they will act on the information he provides. Therefore, there is not "imminent" lawless action. Writing about crime is commonly done in the United States, and it is not illegal. If someone used the plot of a murder mystery to commit a crime, should the author be liable?
If the publication of computer viruses is protected under the First Amendment, what other laws are available to protect against the dissemination of viruses? The Computer Fraud and Abuse Act is directed toward those who knowingly transmit malicious code. However, CFAA requires proof of intentional unauthorized access to a computer. Most virus creators access only one computer-their own--so the language of this law does not offer significant protection against the spread of viruses.
Also, this Act requires proof that the defendant intended to cause damage. Vandalism statutes may be used when computer virus crime is relatively small scale; terrorism statutes may apply, for larger scale attacks.
Many states also have laws dealing with intentional interference with computer systems. All laws already on the books, however, will need to be reinterpreted to be used against this new type of crime. Are Internet Service Providers liable when viruses are disseminated over their networks? Internet Service Providers ISPs may be prime targets of negligence suits since they are likely to be more readily identifiable and to have more money than the virus writers are.
ISPs may defend themselves saying they did not know what was on their network. Even if they did know, they may support their users' right to free speech. However, if users who breach "netiquette" can be ejected from the network, why not those who post viruses? After all, newsstands can choose not to carry pornography. Can any U. It would be shortsighted to be concerned only with U. Computer viruses disseminated over the Internet could easily have foreign origins, distributions or targets.
The recent Love Bug virus was investigated in the Philippines where it is believed to have originated , according to the laws of that country. International agreements and international sanctions will be required to successfully address the dissemination of malicious software over the Internet.
Publishing an inflammatory work, such as a bomb-making manual, is frequently seen as equivalent to publishing virus software, but there is a key difference. The bomb maker is not provided with the actual bomb but must go out and purchase all the ingredients and supplies. Criminal liability may still apply to the natural person.
If you are going to include all provisions in the Revised Penal Code, there can even be more than 16 types of cybercrime as a result. Liability on other laws Section 7 was struck down by Supreme Court as it violated the provision on double jeopardy. Jurisdiction a The Regional Trial Court designated special cybercrime courts shall have jurisdiction over any violation of the provisions of this Act including any violation committed by a Filipino national regardless of the place of commission.
Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situation in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.
There are instances of online attacks, done anonymously, where victims approach police authorities for help. This law — gave our police authorities just that. This includes: a The PNP and NBI are mandated to organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act.
Section Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case. Section 13 e Carry out search and seizure warrants on computer data.
The responsibility of service providers SP Service provider refers any public or private entity that provides to users of its service the ability to communicate by means of a computer system, and processes or stores computer data on behalf of such communication service or users of such service. Section 3 n. Content data shall be similarly preserved for six 6 months from the date of receipt of the order from law enforcement authorities requiring its preservation.
Section 13 c Once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case. Section 13 d Upon expiration of time required to preserve data, SP shall immediately and completely destroy the computer data subject of a preservation and examination. Service Provider protection insofar as liability is a concern is already covered under the E-Commerce Law.
Inadmissible evidence a Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal. Access limitation The Supreme Court struck down Section 19 of the law that gives the Department of Justice powers to order the blocking of access to a site provided there is prima facie evidence supporting it. Cybercrime new authorities a Office of Cybercrime within the DOJ designated as the central authority in all matters relating to international mutual assistance and extradition.
In my discussion with lawyers, journalist, bloggers, among others, concerns were raised on how the law can be in violation of the Constitution and other laws. This includes: 1. Discrimination against online crime. In crimes committed online, the law gives a higher penalty compared to its offline counterpart. This is seen as a violation of principles within the E-Commerce Law where both offline and online evidence is given equal weight.
In its implementing rules and regulations, it also indicated not to give special benefit or penalty to electronic transactions just because it is committed online. However, I note that perhaps the reason for this also is to increase the penalties. The original Revised Penal Code, for example, gives a penalty for libel in the amount of up to six thousand pesos P6, Did the Cybercrime Law criminalize online libel?
Will it result to double jeopardy? Some see the Cybercrime Law as enabling criminalization of online libel. I think that is not correct. Libel is a criminal offense as defined under the Revised Penal Code. The E-Commerce Law empowered all existing laws to recognize its electronic counterpart. It recognized both commercial and non-commercial in form. Existing penalties under the laws where offense fall in shall apply. That is why the filing of libel cases committed electronically became possible in the past years and there were cases filed, some won, some lost, and some are ongoing.
Libel is already a criminal offense under the Revised Penal Code as is. Then it got extended to its electronic form since with the recognition of its electronic form provided by the E-Commerce Law with existing penalties applying to it. According to Atty. The maximum penalty for electronic libel is 8 years. The amount of penalty is still to be set by the DOJ as there is usually no automatic degree scaling in special penal laws.
If a person who got accused of committing electronic libel also did the same in traditional offline form, only one case shall be filed. It will be interesting to see how the DOJ will implement the scaling in effect as a result of this. The mention of libel in the Cybercrime Law is the most contested provision in the law. The additional penalties is seen to curtail freedom of expression.
Most of the petitions against the Cybercrime Law focused on this provision. Numerous legislators are already expressing interest as well in amending the Cybercrime Law and Revised Penal Code. Real-time data access I appreciate the need for real-time access to data, such as cellular traffic data, especially in tracking scammers and any critical incident as it happens such as kidnapping and other in-progress crimes where immediate access is important.
However, the mining of this data for surveillance can be seen as subject abuse. Furthermore, if no intervention such as a judge approval, comes first before getting access where need can be justified. Although I think this will slow down the process if anything needs court approval first.
SAMUEL ADEDOYIN FOREX CONVERTER
The person charged with aiding and abetting knew of the intention or plans to commit the crime. The crime of aiding and abetting may be brought against persons who knowingly aids, counsels, induces or procures the commission of a crime. The actions of the person accused of aiding and abetting must be accompanied with the intent to facilitate the crime. What possible defenses can I raise if I am prosecuted for aiding and abetting? You can prove that you had no knowledge of the plans to commit a crime.
You may also prove that as soon as you realized that you may be involved in a criminal act, you stopped your support and encouragement of the commission of the crime. You can prove that you warned the persons who committed the crime or that you repudiated the crime. You can prove that you notified law enforcement of the crime about to be committed or being committed.
Can I raise the defense of alibi? The defense of alibi is an assertion that you could not have aided or abetted in the commission of the crime because at the time and place the crime was committed you were elsewhere and it was impossible for you to have been at the time and place where the crime was committed. Just because you are not present when the crime was committed does not mean that you did not assist or facilitate the commission of the crime.
The acts that aided and abetted the commission of a criminal offense may have been committed prior to the commission of the crime itself. Aiding and abetting is not a separate or distinct crime of itself. A person who aids and abets the commission of a crime is an accomplice to a crime.
Section 31 of Title 2 and Part 1 of the California Penal Code treats as principals those who commit acts that aid and abet the commission of a crime. Aiding — the giving of assistance or support to someone else in their commission of a crime. Abetting — the encouragement, or motivating someone to commit a crime.
This may include rabble-rousing, goading, and instigating someone, or a crowd, to commit an illegal act. Accessory — a person who actually assists in the commission of a crime committed primarily by someone else. In most jurisdictions, the law distinguishes between an accessory after the fact, and an accessory before the fact, lending additional prosecutorial power.
To be convicted of this type of crime, however, the prosecution must prove that the accomplice knew that a crime was being, or had been, committed by the principal. What is Conspiracy The primary difference between aiding and abetting or being an accessory to a crime and a conspiracy is whether or not the crime was actually committed. While the former are charges imposed after the crime has been committed — naming a third party who helped in some way to facilitate or cover up the crime — someone can be charged with conspiracy, even if the crime never happened.
This is not to say that anyone who daydreams up a crime can be charged with conspiracy. If, however, two or more people collaborate on how to commit a specific crime, coming up with plans to carry it out, they have conspired to commit that crime. Should something happen to prevent them from engaging that plan, they still have committed the crime of conspiracy.
For example: Armand, an executive assistant at a finance firm, knows that his boss keeps certain passwords and login information in a notebook in his desk drawer. He befriends Letti, who he knows has no problem doing things that are morally questionable. Another employee overhears Armand and Letti talking over lunch on the patio, and mentions it to management, who calls the police.
A quiet investigation ensued, with police interviewing witnesses, and viewing surveillance video of the pair talking frequently. Both Armand and Letti are then taken into custody, and charged with conspiracy to commit the crime — even though the actual crime was never completed. One of the men, Daniel Wilkins, was mocking the other, Donald Rose, saying he had not proven himself as a gang member.
As Rose headed into an area controlled by two Blood gangs enemies of the East Coast Crips , a California Highway Patrol officer pulled over a car that was both speeding and driving recklessly. The officer took the driver of the car to jail, leaving the passenger William Dabbs at the scene. Apparently unable to drive the car, Dabbs walked to a pay phone to call his cousin for a ride. During the brief conversation, the cousin heard the phone suddenly drop, then he heard a fight, which ended with two gun shots.
Dabbs died soon after from his injuries. A few months later, both Wilkins and Rose were arrested for the crime. While Rose did not confess to the shooting, Wilkins confessed to aiding and abetting the crime, having egged Rose on to go looking for someone to shoot. He told police that Rose had robbed and shot the victim.
The state decided to prosecute both men for robbery and murder. Rose — who had done the shooting — was acquitted of the crimes. Wilkins apparently did not know that someone who aids and abets the commission of such a serious crime can be held just as responsible as if he had pulled the trigger himself. A jury found Wilkins guilty of robbery, first degree murder, and personally using a firearm as a primary contributor to the crime.
In other words, because Rose was found not guilty, there essentially was no crime committed by the person Wilkins was accused of helping. In this example of aiding and abetting prosecution, the appellate court determined that, because the state cannot appeal an acquittal in a criminal matter, it is at a disadvantage. It would not be fair or just for the state to be barred from prosecuting an accomplice to the crime, regardless of what happened to the actual perpetrator of the crime.
Federal law, found in 18 U.
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