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Susan W. Brenner^[1]

   II.   Criminal Liability: The Real World

¶14  As the previous section explains, we have come to implicitly assume that there are two kinds of offenses: those crimes that occur in the real world, and those that occur in the virtual world of cyberspace.^[22]  This section describes the legal principles we use to impose criminal liability for the commission of traditional crimes committed in the physical world.  The next section considers whether these principles are readily transposable to cyberspace.

¶15  As an aside, it may surprise some to learn that the notion of a virtual crime long antedates the rise of cyberspace.  The English Treason Act of 1351, for example, made it a crime to “compass or imagine the death of our lord the King, or of our lady his Queen or of their eldest son and heir.”^[23]  This is an example of a “thought crime,” the commission of which does not require that the perpetrator commit a volitional act in our shared, external reality which actually causes, attempts to cause, or threatens to cause harm to someone or something.^[24]  The Treason Act of 1351 sought to punish people for their thoughts alone.  It is, however, an historical aberration: Anglo-American law has long rejected the use of thought crimes, for various reasons.^[25]

¶16  Anglo-American law bases criminal liability on the coincidence of four elements: a culpable mental state (the mens rea);^[26] an act or a failure to act when one is under a duty to do so (the actus reus); the existence of certain necessary conditions or “attendant circumstances”; and a prohibited result or harm.^[27]  The crime of bigamy illustrates how all these elements must combine for the imposition of liability. To commit bigamy, someone must enter into a marriage knowing either that she is already married or that the person whom she is marrying is already married.^[28] The prohibited act is the redundant marriage, the culpable mental state is the perpetrator’s knowledge that she is entering into a redundant marriage, the attendant circumstance is the existence of a pre-existing, valid marriage, and the harm is the threat bigamous marriages pose to the stability of family life.^[29]

¶17  Bigamy does not appear to be a crime that can become a cybercrime. It does not seem that bigamy can be committed in cyberspace; for various reasons, including the fact that marriage—at least as heretofore constituted—is an intrinsically real world endeavor,^[30] bigamy seems inevitably relegated to the confines of the physical world.^[31]  But it does appear that other crimes can make this transition into the virtual world and become cybercrimes.^[32] The next section of this article explores that possibility, examining the structural and functional similarities between certain crimes and various cybercrimes.  To set the stage for that discussion, it is helpful to outline the essential elements of some of the crimes that can move into the virtual world of cyberspace.  

(1) Burglary and Criminal Trespass

¶18  Burglary is generally defined as entering “a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a offense therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.”^[33]  The essence of the offense is an unlawful entry into an area for the purpose of committing an offense, such as theft, once the entry is complete.^[34] Parsing the offense into its four constituent elements yields this result: the actus reus is the perpetrator’s entering a building or occupied structure; the mens rea is his or her doing so with the purpose of committing an offense inside; the attendant circumstances are that the perpetrator is not legally entitled to enter the premises in question; and the harm is that he or she unlawfully enters premises intending to commit a crime inside.^[35]  One commits criminal trespass, on the other hand, when, “knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any building or occupied structure, or separately secured or occupied portion thereof.”^[36]  The offense of criminal trespass is completed when the offender enters into or remains in an area to which he or she does not have a lawful right of access; there is no requirement that the person intend to commit an offense once the intrusion is complete.^[37]  Parsing this offense into its constituent elements yields the following result: the actus reus is the perpetrator’s entering a building or occupied structure; the mens rea is the perpetrator’s knowing he or she is not legally entitled to enter the premises; the attendant circumstances are that the perpetrator is not legally entitled to enter the premises; and the harm is his or her unlawfully entering the premises.^[38]

(2) Forgery

¶19  An offender commits forgery if, acting with the purpose of defrauding or injuring someone or with the knowledge that she is facilitating a fraud or injury to be perpetrated by anyone, she does any of the following: (a) alters a writing of another without the owner’s authorization; (b) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or (c) utters any writing which he knows to be forged in a manner specified in paragraphs (a) or (b).^[39] A “writing” includes “printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trade-marks, and other symbols of value, right, privilege, or identification.”^[40] Parsing this offense into its constituent elements produces the following result: the actus reus is the perpetrator’s altering, making, completing, executing, authenticating, issuing, transferring or uttering a forged writing; the mens rea is the perpetrator’s intending to defraud someone or knowing he or she is facilitating a fraud being perpetrated by someone else; the attendant circumstances are that the writing was altered; and the harm is that the perpetrator employs a forged writing to defraud or help defraud someone.^[41]

(3) Fraud

¶20  The offense of fraud, or false pretenses, consists of an offender’s knowingly making “a false representation of a material present or past fact” to a victim, with the purpose of defrauding the victim, and thereby causing the victim to transfer property or something of value to the offender.^[42]  Fraud differs from theft in that the victim of fraud voluntarily parts with his or her property, but does so because she has been deceived by material false representations made by the perpetrator of the fraud.^[43]  Parsing this offense into its constituent elements produces the following result: the actus reus is the perpetrator’s making a false representation to the victim; the mens rea is the perpetrator’s making what he or she knows to be a false representation with the purpose of defrauding the victim; the attendant circumstance is that the representation is false; and the harm is that the victim is defrauded.^[44]

(4) Pornography and Obscenity

¶21  Most states, and the federal government, outlaw the possession or distribution of pornography, especially child pornography.^[45]  The pornography, or obscenity, statutes essentially make it an offense, often a minor offense, knowingly to display obscene materials, which will be statutorily defined.^[46]  Parsing this offense into its constituent elements yields the following result: the actus reus is displaying obscene materials; the mens rea is doing so knowingly; the attendant circumstances are that the material is obscene; and the harm is the dissemination of obscenity.^[47] Child pornography statutes generally make it an offense either to “knowingly possess” material that “visually or aurally depicts” a child under the age of eighteen engaged in sexual activity or to bring or cause such material to be brought into the state or distributes it in the state or publishes or otherwise issues such material with the purpose of distributing it in the state.^[48]  Parsing this offense into its constituent elements yields the following result: the actus reus is possessing, importing, distributing, publishing or otherwise issuing child pornography; the mens rea is the knowing possession or the purposeful importing, distributing, publishing or issuing of child pornography; the attendant circumstances are that the material is indeed child pornography; and the harms are that children are used to create child pornography and that child pornography is disseminated to those who find it appealing.^[49]  Statutes targeting pornography which do not include children have a similar structure.^[50]

(5) Stalking

¶22  Stalking is a relatively new offense,^[51] but one that is defined with a fair amount of consistency.  Generally, it consists of “on more than one occasion follow[ing] or [being] in the presence of another person” for no lawful reason with the purpose of causing death or bodily injury or causing “emotional distress by placing that person in reasonable fear of death or bodily injury.”^[52]  Most statutes do require that the offender’s conduct have been sufficient to cause a “reasonable person” to fear the infliction of death or bodily injury on the victim or on one or more members of the victim’s family.^[53]  This is known as the “credible threat” requirement.^[54] Parsing this offense into its constituent elements yields the following result: the actus reus is the perpetrator’s following the victim or being in the victim’s presence on more than one occasion for no lawful reason and thereby communicating a credible threat to harm the victim or the victim’s family; the mens rea is the perpetrator’s purpose of causing death or bodily injury to the victim or causing the victim emotional distress by putting him or her in fear of death or bodily injury; the attendant circumstances are the perpetrator’s lack of legal justification for what he or she did; and the harm is the fear and apprehension the victim experiences.^[55]

(6) Theft and Embezzlement

¶23  Generally, one commits theft if he or she unlawfully “takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.”^[56]  Parsing this offense into its constituent elements yields the following result: the actus reus is the perpetrator’s unlawfully taking or exercising unlawful control over the property of another; the mens rea is the perpetrator’s intention to deprive the lawful owner of his or her property; the attendant circumstances are that the perpetrator does not have any legal right to take or exercise control over the property; and the harm is that the victim is deprived of his or her property.^[57] 

¶24  Embezzlement, on the other hand, lies in exploiting a relationship with another to unlawfully take that person’s property.  To prove embezzlement, the prosecution has to show that the defendant was the victim’s agent and, as such, was authorized to receive property belonging to the victim, that the defendant received property in the course of her employment, office, or other fiduciary relationship with the victim and that the defendant then, knowing the property was not her own, appropriated it or “fraudulently misapplied it”.^[58]  Parsing this offense into its constituent elements yields the following result: the actus reus is the perpetrator’s appropriating or fraudulently misapplying the victim’s property; the mens rea is the perpetrator’s knowing that the property was not lawfully his or her own; the attendant circumstances are that the perpetrator was the victim’s agent and, as such, authorized to receive property belonging to the victim; the harm is that the perpetrator deprives the victim of his or her property.^[59]

(7) Vandalism

¶25  Vandalism is generally defined as knowingly causing “damage to or the destruction of any real or personal property of another” when the actor “does not have the owner's effective consent” to do so.^[60]  Parsing this offense into its constituent elements yields the following result: the actus reus is the perpetrator’s causing damage to or the destruction of another’s property; the mens rea is the perpetrator’s acting knowingly; the attendant circumstances are that the property belongs to someone other than the perpetrator and he or she does not have consent to inflict damage upon it; and the harm is that an innocent person’s property is damaged or destroyed.^[61]

(8) Inchoate Offenses

¶26  The four elements of a crime also govern the special category of crimes known as inchoate offenses.  The inchoate offenses are attempt, conspiracy and solicitation.^[62]  They address conduct that is designed to result in the commission of a regular, substantive^[63] offense, such as robbery or homicide, but for some reason fails to do so.^[64]  The failure can occur because the would-be perpetrator is discovered and apprehended before she can carry out the contemplated substantive offense (which is often called the “target” offense), or because intervening circumstances make the commission of the target offense impossible.^[65]  The law imposes liability for these preparatory, incomplete offenses because in each the perpetrator, acting with the requisite mens rea, engages in conduct that is designed to lead to the commission of a completed crime.  In attempt, the perpetrator has taken steps such as buying a murder weapon to prepare for committing the target offense;^[66] in conspiracy, the perpetrator has agreed with others that the target offense, such as murder, will be committed;^[67] and in solicitation, the perpetrator has sought out someone and asked them to commit the target offense.^[68]  The law imposes criminal liability even though the perpetrator did not succeed in carrying out the target offense on the premise that the inchoate offender’s conduct demonstrates that she is sufficiently dangerous to warrant the imposition of sanctions.

(9)  Non-Offenses: Vigilantism and Terrorism

¶27  It is important to note, at this point, two activities which, while they often give rise to criminal prosecutions, do not themselves constitute “crimes.”  It is important because both are postulated as the basis for recognizing new cybercrimes, as is discussed in the next section of this article.

¶28  The first activity is “vigilantism,” which is the act of conducting oneself as a “vigilante.”  A vigilante is someone who enforces or attempts to enforce “obedience to the law without [having the] legal authority to do so.”^[69]  The law has never recognized a separate crime of “vigilantism”; instead, vigilantes are prosecuted for the offenses they commit in the course of their efforts to enforce obedience to the law, for example homicide or assault.^[70]

¶29  The second is terrorism, which is not a distinct offense because, like vigilantism, it consists of engaging in already-defined criminal activity—homicide, assault and property destruction being the most popular forms—to advance a specific political agenda.^[71]  As one federal statute explains, terrorism is

¶30  an activity that involves a violent act or an act dangerous to human life that is a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; and appears to be intended-(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by assassination or kidnapping.^[72]

¶31  Like vigilantes, terrorists are charged with the underlying offenses they commit in an attempt to promote their political agenda.^[73]

   III.   Criminal Liability: The Virtual World

¶32  For virtual crimes to exist, cybercrimes must differ from crimes in some material respect.^[74]  Both cybercrimes and crimes involve socially unacceptable conduct for which we impose criminal liability, so the most likely source of material differences between them is the principles needed to impose this liability.  If cybercrimes differ in one or more material respects from crimes, the principles used to impose liability for crimes should not suffice to impose liability for cybercrimes.  If, on the other hand, the principles we use for crimes can be used to impose liability for cybercrimes, they cannot be discrete entities: cybercrimes would be simply a subset of crimes.

¶33  As the previous section explained, we define crimes as consisting of four elements: prohibited conduct, culpable mental state, specified attendant circumstances and a forbidden result or harm.^[75]  These elements are the method we use to impose liability for the commission of crimes.^[76]  To convict someone of a crime, the prosecution must prove all of these elements beyond a reasonable doubt.^[77]

¶34  These elements, and the related principles we use to operationalize them, were developed to deal with prohibited conduct occurring in the physical world.^[78]  The premise that cybercrimes represent a new legal phenomenon derives from the empirically undeniable fact that they involve conduct that is committed wholly or partially in a different venue: the virtual world of cyberspace.  And depending on the offense at issue, cybercrimes may also involve attendant circumstances or harms that are located in cyberspace.  For the premise that cybercrimes are a new legal phenomenon to be valid, the locus of criminal conduct (plus attendant circumstances or results) must constitute a material difference between crime and cybercrime.  The premise fails unless making cyberspace the venue for criminal conduct means we cannot use these elements and principles to impose criminal liability on cyber-perpetrators. The virtual situs of the crime must, in other words, put it outside the scope of the principles we use to impose liability in the real world.

¶35  The only way to determine whether this is true is to analyze the conduct involved in various cybercrimes to see if it can be addressed by using traditional principles of criminal liability.  For the above-noted premise to be valid, one or more of the elements we employ to impose liability on those who commit crimes in the physical world cannot be applied to him or her because the element(s) cannot be transposed to encompass conduct occurring in cyberspace, or, at least, cannot be transposed without undergoing significant revisions.

¶36  The sections below undertake this analysis: The first examines seven substantive cybercrimes, each of which appears to be analogous to a crime that occurs in the real world, plus the inchoate offenses and two non-offenses.^[79]  This section analyzes whether these putative cybercrimes are merely the commission of extant crimes in a new venue, or whether they are, in fact, entirely new varieties of unlawful conduct.

¶37  The second section goes a step further: It considers whether there are offenses that are not analogues of extant offenses but are new, truly virtual crimes.  To the extent such offenses exist, they are the most likely candidates to be true cybercrimes, that is, a new variety of criminal activity, one outside the ambit of traditional principles of criminal liability.

Cybercrimes: Crime Analogues?

¶38  The crimes considered below are discussed in the previous section of this article.^[80]  This discussion considers whether their postulated cybercrime analogues actually represent a new variety of criminal activity: virtual crime.  It is ordered, roughly, on the extent to which each cybercrime occurs outside the confines of the physical world; it begins with offenses in which the use of cyberspace is minimal, if not peripheral, and proceeds to those in which it plays a more central role.

(1) Theft and Embezzlement

¶39  Theft cybercrimes can involve the theft of information, the theft of money or property (including computer hardware or software) and the theft of services (including computer services).^[81]  Each of these alternatives is conceptually indistinguishable from the theft one encounters in the real world.

¶40  In the physical world, theft is someone’s unlawfully taking or exercising unlawful control over property belonging to another with the purpose of depriving the lawful owner of that property.^[82] In modern law, “property” encompasses both tangible property (for example, money, jewels, clothing, and furniture) and intangible property (for example, written agreements and electricity).^[83] To convict someone of theft under the extant law of crimes, the state must prove each of these four elements beyond a reasonable doubt: 

actus reus: The perpetrator unlawfully took or exercised unlawful control over the property of another.

mens rea: The perpetrator acted with the purpose of depriving the lawful owner of property.

attendant circumstances: The perpetrator had no legal right to take or exercise control over the property.

harm: The victim is deprived of property.

¶41  These elements can be used to impose liability for theft cybercrimes: the most obvious example of this is the use of cyberspace to perpetrate a theft of money or property (excluding computer hardware or software).  Assume a cybercriminal uses her computer to break into a financial institution’s computer system; having done so, the cybercriminal transfers funds from the financial institution’s accounts to her own, offshore account.  The cybercriminal has purposely and unlawfully taken money belonging to someone else, and thereby deprived the victim of money that is lawfully theirs; this is a traditional, zero-sum theft in the sense that the victim suffers a loss of property and the thief gains the property.  The only difference between this theft and a theft occurring in the physical world is that one criminal uses a computer and cyberspace to achieve the unlawful taking while another uses physical effort in the physical world to do so.^[84]  The perpetrators may use different methods to accomplish their thefts, but their conduct, their mental states, the pertinent circumstances and the ultimate result are conceptually indistinguishable. 

¶42  The same is true for theft of computer hardware; computer hardware being simply a form of property.^[85]  A cybercriminal might or might not use a computer and cyberspace to facilitate her theft of computer hardware, but the hardware itself, and its transfer to the cybercriminal, all occur in the physical world.  In these scenarios, the only role cyberspace plays is as the method used to perpetrate the underlying theft offense.

¶43  And the same is also true for a theft of services.  The Model Penal Code, which dates back to the early 1960's and has influenced many state criminal codes,^[86] defines the offense of theft of services.^[87] Under the Model Penal Code, a person commits theft of services if he or she obtains services “which he knows are available only for compensation” without paying for them.^[88]  Services include “labor, professional service, transportation, telephone or other public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of vehicles or other movable property”.^[89]  If this definition of services is revised to add “Internet server time, computer time [and] computer service time,”^[90] the Model Penal Code provision and statutes based upon it can address thefts of computer services.  This is true even though the commodity that is stolen exists only in cyberspace, and even though the theft is perpetrated via cyberspace.  The traditional element analysis still applies, though in a slightly different form: The perpetrator, having no legal right to do so and acting with the purpose of depriving the lawful owner of his or her property, took computer services that belonged to the victim and thereby deprived the victim of that property.^[91]  The fact that the theft is perpetrated via cyberspace is irrelevant to this analysis; the use of cyberspace is merely the method by which the crime is carried out.  It is true that the theft of computer services differ slightly from traditional theft offenses: Theft of tangible property offenses are zero-sum^[92] offenses in which the possession and use of property is transferred from one person to another; if the thief succeeds, the victim is totally deprived of his or her property.  In theft of services offenses, the victim’s property is the ability to offer services in exchange for pay.^[93]  When a theft of services occurs, the victim is totally deprived of some quantum of the services she offers or, more accurately, of the remuneration she should have been paid for those services,^[94] but is not deprived of the ability to offer such services.  This difference is irrelevant to the applicability of traditional principles of criminal liability because the victim has still been deprived of a commodity that lawfully belonged to her.

¶44  Theft of information and theft of computer software are somewhat more challenging analyses, because they can deviate even further from the zero-sum model of theft that deals with the misappropriation of traditional property.  Both information and computer software constitute property,^[95] but they can raise unique issues regarding theft offenses.  As noted above, theft of property has traditionally been a zero-sum offense, in which the  victim is totally deprived of the possession and use of his or her tangible property; to some extent, at least, the same can be said of theft of services, in which the victim is totally deprived of the remuneration that should have been paid for the stolen services. 

¶45  Theft of information and theft of computer software can involve this same result, for example when the victim is totally deprived of the information or the stolen software.  This alternative presents a zero-sum offense in which sole possession of the information or software is transferred from the rightful owner to the thief.^[96]  This is a variant of traditional property theft and, therefore, liability can be imposed by using the traditional elements:

actus reus: The perpetrator unlawfully took or exercised unlawful control over the property (for example, information or software) of another.

mens rea: The perpetrator acted with the purpose of depriving the lawful owner of software or information.

attendant circumstances: The perpetrator had no legal right to take or exercise control over the software or information.

harm: The victim is deprived of his or her software or information.

¶46  If the state proves each of these elements beyond a reasonable doubt, and if the defendant raises no viable defenses, the defendant will be convicted of theft.

¶47  Theft of information and theft of software can also involve a different result, one in which the perpetrator copies the victim’s property (information or software) and takes the copy away, leaving the original version of the information or software in the victim’s possession.^[97]  This scenario does not involve a zero-sum offense because the victim still has the possession and use of his or her property; indeed, the victim may be quite unaware that there has been a theft.  But the victim has still suffered a loss, the nature of which depends on the type of property at issue: When a perpetrator copies information belonging to the victim, it is most likely that the victim had compiled that information for his or her own use, rather than to sell it (or sell copies of it) to someone else.  We cannot, therefore, analogize this scenario to a theft of services, because the victim did not intend to exchange the information for remuneration.  We can still identify a loss to the victim, though it is more of a dilution than a loss: By copying the victim’s information and absconding with the copy, the perpetrator has gained access to information which, until that point in time, belonged solely to the victim.^[98]  The victim still possesses the information, but its value has been diluted by the fact that the victim is no longer the sole possessor of that information.  Indeed, in some cases the value may be destroyed by this.  We have therefore identified a deprivation which the victim has suffered, a deprivation of the value of the information, and, if all the other elements are met, this is sufficient to allow us to impose liability on the perpetrator, using the following analysis:

actus reus: The perpetrator unlawfully copied property (information) of another.

mens rea: The perpetrator acted with the purpose of depriving the lawful owner of the exclusive use of information.

attendant circumstances: The perpetrator had no legal right to copy the information.

harm: The victim is deprived of the exclusive use of information.

¶48  Of course, if the victim was in the business of selling information, the perpetrator’s actions would support an analogy to theft of services. The perpetrator would have deprived the victim of the remuneration she would have received by selling the information as a single commodity or by selling some quantum of it. Since we can identify a deprivation that the perpetrator inflicted on the victim, we can impose liability using the same, traditional analysis:

actus reus: The perpetrator unlawfully copied property (information) of another.

mens rea: The perpetrator acted with the purpose of depriving the lawful owner of ability to sell the copied information.

attendant circumstances: The perpetrator had no legal right to copy the information.

harm: The victim is deprived of ability to sell the copied information.

¶49  Precisely the same analysis can be applied to perpetrators who copy software.^[99]

¶50  Except for theft of computer hardware, the theft cybercrimes involve the use of cyberspace to commit a theft offense.  It is true that unlike other crimes such as forgery,^[100] theft crimes are differentiated according to the method used to commit them.  Most jurisdictions make it a distinct crime (armed robbery) to use a weapon to commit theft.^[101] Most also make “theft by deception” a separate crime.^[102]   The recognition of these varieties of theft does not, however, militate for the adoption of theft cybercrimes.  The crime of armed robbery is simply aggravated theft, that is, the “misappropriation of property under circumstances involving a danger to persons . . . and thus deserving of greater punishment” than that imposed for simple theft.^[103]  The crime of theft by deception—which is closely related to but differs from fraud—arose from the need to impose criminal liability when, instead of simply taking property away from the victim, the perpetrator used lies to induce the victim to hand over the property voluntarily.^[104]  A perpetrator’s use of cyberspace, on the other hand, does not transform the conduct at issue into a new type of criminal activity.  As is demonstrated above, traditional criminal law principles can be used to impose liability for each of these varieties of theft, which means there is no need to develop new law for theft cybercrimes.

(2) Fraud

¶51  In theft offenses, the perpetrator takes someone’s property without the victim’s permission (or even knowledge); in fraud offenses, the perpetrator uses false statements and misrepresentations to persuade the victim to part with property or other “things of value” voluntarily.^[105]  To convict someone of fraud under the extant law of crimes, the state must prove each of these four elements beyond a reasonable doubt: 

actus reus: The perpetrator communicates false statements to the victim.

mens rea: The perpetrator communicates what she knows are false statements  with the purpose of defrauding the victim.

attendant circumstances: The perpetrator’s statements are false.

harm: The victim is defrauded out of property or something of value.^[106]

¶52  Fraudulent schemes are very common in cyberspace.^[107]  According to one source, reports of fraudulent schemes increased 600% from 1997 to 1998.^[108]  This source says the top ten online frauds are as follows: “auctions, general merchandise sales, computer equipment/software, Internet services, work-at-home, business opportunities/franchises, multilevel marketing/pyramids, credit card offers, advance fee loans, and employment offers.”^[109]  Ninety-three per cent of the victims defrauded by these online schemes parted with their money off-line, by sending checks or money orders to the perpetrators of the scheme.^[110]

¶53  In these schemes, the perpetrators use the Internet to communicate their false statements to the victims; the statements can be transmitted via a web site or e-mailed directly to potential victims.^[111]  The perpetrators make the false statements, of course, for the purpose of persuading potential victims to send them money in exchange for products, services or benefits which the victims will never receive or which will prove to be valueless or of little value if and when the victims do receive them.  For now, it appears that most victims are sending their payments to the perpetrators offline, but this is of little import in analyzing whether extant legal principles can be used to impose liability on those who are perpetrating these online scams.

¶54  Online fraudulent schemes are simply a variant of traditional fraudulent schemes and, therefore, liability can be imposed by using the traditional elements:^[112]

actus reus: The perpetrator communicates false statements to the victim.

mens rea: The perpetrator communicates what she knows are false statements  with the purpose of defrauding the victim.

attendant circumstances: The perpetrator’s statements are false.

harm: The victim is defrauded out of property or something of value.^[113]

¶55  The use of cyberspace to communicate the false statements and even as the vehicle by which the victim transmits funds to the perpetrators does not affect the application of these principles.  True, much of the offender’s conduct occurs in cyberspace, but this is because cyberspace simply becomes the method perpetrators use to effectuate their schemes.^[114] If the state proves each of these elements beyond a reasonable doubt, and if the defendant raises no viable defenses, the defendant will be convicted of fraud.  There is no need for a separate law addressing cyber-fraud,^[115] as was demonstrated by a California case in which an 1872 statute apparently directed at livestock auction fraud was used to prosecute the perpetrator of online auction fraud.^[116]

(3) Forgery

¶56  Essentially, forgery consists of knowingly altering a document and/or knowingly using an altered document for the purpose of defrauding someone.^[117] To convict someone of forgery under the extant law of crimes, the state must prove each of these four elements beyond a reasonable doubt: 

actus reus: The perpetrator knowingly altered, made, completed, executed, authenticated, issued, transferred or uttered a forged writing.

mens rea: The perpetrator’s purpose was to defraud someone or facilitate a fraud being perpetrated by someone else.

attendant circumstances: The writing was altered.

harm: The perpetrator used a forged writing to defraud or help defraud someone.

¶57  Like theft cybercrimes, forgery cybercrimes can assume several different forms.  A computer can, for example, be used to alter or create a false written or electronic document;^[118] this conduct can be addressed by using the elements set out above: 

actus reus: The perpetrator used a computer to knowingly alter, make, complete, execute, authenticate, issue, transfer or utter a forged writing.

mens rea: The perpetrator’s purpose was to defraud someone or facilitate a fraud being perpetrated by someone else.

attendant circumstances: The writing was altered.

harm: The perpetrator used a forged writing to defraud or help defraud someone.

¶58  Here, the computer is simply the method by which the forgery is carried out; the instrument that is used to alter or otherwise falsify the document.^[119]   Since we do not create separate offenses for “forgery by pen” or “forgery by computer” or “forgery by copying machine,” there is no reason to create a “forgery by computer” offense.^[120]  This conclusion holds even when the forgery consists of altering, creating or even deleting a computer document such as a data file stored on a computer.^[121]  All that is needed is to revise the statutory definition of forgery so that it encompasses computer data and computer programs.^[122]

(4) Pornography and Obscenity

¶59  Pornography and obscenity statutes make it an offense to possess, create, import, display, publish or distribute pornography (especially child pornography) or other obscene materials.^[123]  To convict someone of one of these offenses under the extant law of crimes, the state must prove each of these four elements beyond a reasonable doubt:

actus reus: The offender possessed, created, imported, displayed, published or distributed pornography.

mens rea: The knowing possession or the purposeful creating, importing, displaying, publishing, or distributing of child pornography.

attendant circumstances: The material is indeed pornography;

harm: Pornography is created or disseminated.^[124]

¶60  Traditional pornography and obscenity statutes target pornography that is depicted via older media, such as books, magazines, films, and videotapes.^[125]  Computers and cyberspace are merely additional media by which existing offenses can be committed. They can be addressed by simply revising the existing statutes to encompass the use of computers or cyberspace to create or disseminate this type of material.^[126]

(5) Stalking

¶61  In the physical world, stalking consists of repeatedly following or being in another person’s presence for no lawful reason and with the purpose of causing death or bodily injury to that person or causing that person emotional distress by placing him or her in reasonable fear of death or bodily injury.^[127]  To convict someone of the crime of stalking, the prosecution has to prove each of the following elements beyond a reasonable doubt:

actus reus: The perpetrator repeatedly follows the victim or is in the victim’s presence for no lawful reason, thereby communicating a credible threat to harm the victim or the victim’s family.

mens rea: The purpose of causing death or bodily injury to the victim or causing the victim emotional distress by putting her in fear of death or bodily injury.

attendant circumstances: The perpetrator’s lack of legal justification for what she did.

harm: The fear and apprehension the victim experiences.^[128]

¶62  In the virtual world, cyber-stalkers use cyberspace to achieve a result analogous to that set out above, such as to threaten and intimidate their victims.^[129]  But cyber-stalking differs from stalking in the physical world in two respects, both of which make it difficult to apply real world stalking laws to cyber-stalkers.^[130] 

¶63  One difference is the existence of a threat: Traditional stalking laws frequently require that a stalker have made at least one “credible threat” to injure his or her victim.^[131]  Cyber-stalkers often do not threaten their victims, at least not directly;^[132] they are more likely to use tactics that harass and threaten their victims, such as posting the victim’s name and address on the Internet along with false claims that she wants to be raped by strangers.^[133]  And even if a cyber-stalker does directly threaten his or her victim online, a court may not find a threat from someone who is physically located hundreds of miles away to be a “credible” one.^[134]

¶64  The other difference is the physical world requirement that a stalker physically follow his or her victim or be in the victim’s presence.^[135]  As long as they confine their efforts to cyberspace,^[136] cyber-stalkers are never in their victim’s presence or even in their victim’s vicinity, and this can make it difficult, if not impossible, to apply existing stalking laws to them.^[137]

¶65  In an effort to address the problem of cyber-stalking, some states have amended their stalking laws so they include threats transmitted via the Internet.^[138]  This approach is inadequate; this is not an area in which amendments incorporating the use of cyberspace as the method of committing an existing offense are sufficient to deal with how cyberspace is being exploited in the commission of that offense.  That becomes apparent when we try to apply the traditional elements to cyber-stalking:

actus reus: The perpetrator’s repeatedly following the victim or being in the victim’s presence for no lawful reason and thereby communicating a credible threat to harm the victim or the victim’s family: Neither of these occurs in “pure” cyber-stalking (stalking conducted totally via cyberspace) because the cyber-stalker uses information (messages, data, or graphics) posted on or transmitted over the Internet to harass and terrorize her victim; a cyber-stalker therefore does not have to follow the victim or be in her presence.  And because cyberspace lets stalkers employ more subtle means of terrorizing their victims, the cyber-stalker may never engage in conduct that rises to the level of a credible threat.^[139]

mens rea: The perpetrator’s purpose of causing death or bodily injury to the victim or causing the victim emotional distress by putting him or her in fear of death or bodily injury: The cyber-stalker may or may not have this purpose.  Some may want to terrorize their victims by communicating specific threats to harm them or someone they love, while others may be playing a more subtle game of control.^[140]

attendant circumstances: The perpetrator’s lack of legal justification for what she did: This can be problematic because cyber-stalkers tend to rely on the use of communications to harass their victims.  Consequently, unlike “real world” stalkers, cyber-stalkers may therefore be able to invoke the free speech protections of the First Amendment as a defense if they are prosecuted for their actions.^[141]

harm: The fear and apprehension the victim experiences: This, unfortunately, is a constant in both “real world” and cyber-stalking.

¶66  Unlike the offenses heretofore discussed, cyber-stalking cannot be addressed simply by tweaking the principles we use to impose liability for stalking in the physical world.  Does this mean cyber-stalking is a true cybercrime, that is, does it mean we will have to devise new principles to impose liability for cyber-stalking?

¶67  It does not.  It means we have to create a new crime, one that encompasses the actus reus, mens rea and attendant circumstances characteristic of the activity we now call cyber-stalking.  We can do this in two different ways: One is to revise the elements we use to impose liability for traditional stalking so that they remedy the deficiencies noted above and identify the result as a new crime: cyber-stalking.  A better approach is to study the components of this activity as it exists and as we think it may come to exist, and parse these components into the constitutive elements (actus reus, mens rea, attendant circumstances and harm) of one or more new crimes.  To see how this can be done, review Article II of the 1998 Model State Computer Crimes Code^[142] and the 1999 Revision of the Model State Computer Crimes Code.^[143]

¶68  In dealing with cyber-stalking, we find ourselves in a position analogous to that which existed after telephones had been invented and were being widely disseminated for popular use.  Until then, there had been no need to define the “crime” of “making obscene telephone calls.”^[144]  As the technology to engage in this activity became available, some began to engage in that activity, and this necessitated the articulation of a new “crime.”  And even though the rise of the telephone also produced other novel forms of anti-social behavior, no one suggested it was necessary to create new, “tele-crimes.” 

(6) Vandalism

¶69  In the physical world, vandalism consists of knowingly damaging or destroying real or personal property owned by someone else without having that person’s consent to do so.^[145]  To convict someone of the crime of vandalism, the state has to prove each of the following elements beyond a reasonable doubt:

actus reus: The perpetrator damaged or destroyed another’s property.

mens rea: The perpetrator acted knowingly.

attendant circumstances:  The damaged or destroyed property belonged to someone other than the perpetrator and she did not have the owner’s permission to damage it.

harm: An innocent person’s property is damaged or destroyed.^[146]        

¶70  Destructive conduct in cyberspace is often characterized as cyber-vandalism, but most of this conduct is more properly analyzed as cracking (discussed in the section immediately below).  The reason for this is as follows: In the physical world, vandalism does not involve the additional step of illegally gaining entry in order to damage or destroy property; vandalism consists of damaging or destroying property that is readily accessible.^[147]  If someone illegally gains entry to premises for the purpose of damaging or destroying property inside, this is the offense of burglary,^[148] not the lesser offense of vandalism.  As explained below, in the virtual world, the term “cracking” denotes the process of illegally gaining entry to a computer or computer system for the purpose of damaging or destroying property;^[149] conduct which couples illegal access with property damage or destruction must, therefore, be treated as cracking, not as cyber-vandalism.

¶71  So far, the most common type of cyber-vandalism is the creation and dissemination of viruses and other harmful programs.^[150] Once unleashed, these programs spread via e-mail and other means and can inflict various kinds of damage on computers and computer systems, including the deletion or alteration of data and programs stored on a computer or computer system.^[151]  If the author of the harmful program knew it would damage the computers and computer systems it infected, then her conduct is directly analogous to that of a vandal in the physical world.  We have all of the elements needed to impose liability for vandalism:

actus reus: The perpetrator damaged or destroyed another’s property.

mens rea: The perpetrator acted knowingly.

attendant circumstances:  The damaged or destroyed property belonged to someone other than the perpetrator and she did not have the owner’s permission to damage it.

harm: An innocent person’s property is damaged or destroyed.

¶72  If the author of the program did not know it would cause damage, but sent it out as a prank or to amuse, we do not have conduct which would sustain the imposition of liability under the scheme set forth above.  Depending on the circumstances at issue, however, we can probably analogize the perpetrator’s conduct to that of someone who applies graffiti to private or public property;^[152] and since the practice of defacing property with graffiti is often treated as a form of vandalism,^[153] we could reach the conduct by defining cyber-vandalism to include both knowing efforts to destroy property and efforts designed to result in the dissemination of cyber-graffiti, such as viruses.  We can do this by modifying the elements set out above, so that to impose liability for cyber-vandalism the state must prove each of the following beyond a reasonable doubt:

actus reus: The perpetrator damaged or destroyed another’s property.

mens rea: The perpetrator acted knowingly or recklessly (the perpetrator consciously disregarded a substantial risk that her conduct would cause damage to or destruction of property);

attendant circumstances:  The damaged or destroyed property belonged to someone other than the perpetrator and she did not have the owner’s permission to damage it;

harm: An innocent person’s property is damaged or destroyed.^[154]

¶73  Another activity that has been described as cyber-vandalism is a “denial of service” attack.  In a denial of service attack, the perpetrator’s goal

is not to gain unauthorized access to machines or data, but to prevent legitimate users of a service from using it. A denial-of-service attack can come in many forms. Attackers may `flood’ a network with large volumes of data or deliberately consume a scarce or limited resource, such as process control blocks or pending network connections.  They may also disrupt physical components of the network or manipulate data in transit, including encrypted data.^[155]

¶74  A denial of service attack does not constitute a theft of services or of information because the perpetrator’s goal is not to obtain services or information without providing proper remuneration;^[156] rather, it is to prevent the operator of a web site from being able to provide services or information to those who wish to visit the site to obtain either.^[157]

¶75  One can analogize a denial of service attack to vandalism because the attack does inflict a kind of damage on the web site owner’s property.  True, the perpetrator of a denial of service attack does not, like the malicious hackers discussed in the next section, cause structural damage to the victim’s web site.  But the perpetrator of such an attack does damage the victimized web site’s functionality, impairing its ability to provide the services or information it offers to the public.  This functionality is an essential element of such a site and, as such, is an integral component of the site owner’s property because the site’s value is diminished if its functionality is interrupted.^[158] In the physical world, property is for the most part a static concept, so traditional vandalism consists of conduct designed to inflict damage on static property, such as conduct such as starting fires, breaking windows, or painting graffiti.  In the virtual world, property can be a dynamic concept, as in the case of a web site which offers services or information to the public; in this context, vandalism also encompasses conduct that is designed to damage or destroy the dynamic, functional aspect of web property. 

¶76  Imposing criminal liability for cyber-vandalism can be accomplished by doing two things: (1) Expanding the definition of property used in vandalism statutes to incorporate the nuances of web property; and (2) revising the description of the conduct that constitutes vandalism to ensure it encompasses acts designed to damage or destroy these nuances.  If these two steps are taken, the elements set forth above can be used to impose liability on those who perpetrate denial of service attacks.

(7) Burglary and Criminal Trespass

¶77  As section II explains,^[159] burglary and criminal trespass are related offenses.  Criminal trespass is usually considered to be a lesser-included offense of burglary. Both burglary and criminal trespass require that an offender engage in the same conduct, but to commit burglary the offender must intend to go farther, to commit a greater harm than is involved in criminal trespass.^[160]

¶78  In the physical world, criminal trespass consists of entering in a building when one knows he or she is not legally authorized to do so.^[161]  To convict someone of criminal trespass, the state must prove each of the following elements beyond a reasonable doubt:

actus reus: The perpetrator entered a building.

mens rea: The perpetrator knew she was not legally entitled to enter the premises.

attendant circumstances: The perpetrator was not legally entitled to enter the premises.

harm: The perpetrator unlawfully entered private premises.

¶79  In the physical world, burglary consists of entering a building with the purpose of committing an offense (such as theft or arson) inside unless the person’s entry is lawful, either because the building is open to the public or because she is authorized to enter it.^[162]  To convict someone of burglary, the state must prove each of these elements beyond a reasonable doubt:

actus reus: The perpetrator entered a building.

mens rea: The perpetrator entered with the purpose of committing an offense inside.

attendant circumstances:  The perpetrator was not legally entitled to enter the premises in question.

harm: She unlawfully entered premises to commit an offense inside. 

¶80  The obvious cyber-analogies to these offenses are hacking and cracking, respectively.^[163]  Generally speaking, one must be a hacker to engage in hacking or in cracking, a hacker being a person “who enjoys exploring the details of programmable systems and . . . the intellectual challenge of creatively overcoming or circumventing limitations.”^[164] In popular parlance, a “hacker” is someone who is able to, and does, break into computers or computer systems to which she does not have lawful access, often simply for the intellectual challenge involved.^[165]  Strictly speaking, a hacker does not intend to commit an offense or cause damage once inside a computer or computer system, though she may do so inadvertently.  A cracker, on the other hand, is a hacker who breaks into a computer or computer system with the purpose of committing an offense once inside, an offense that can consist of damaging or destroying the system or of using information in the system to commit another offense, such as fraud or theft.^[166]

¶81  Hacking is obviously analogous to physical criminal trespass. In both, the offender gains access to an area—a physical location in trespass and a virtual location in hacking—to which she does not lawfully have access.  Indeed, it is very simple to modify the four elements the state must prove to convict someone of traditional criminal trespass so that they encompass hacking:

actus reus: The perpetrator entered a computer or computer system.

mens rea: The perpetrator knew she is not legally entitled to enter the computer/computer system.

attendant circumstances: The perpetrator was not legally entitled to enter the computer or computer system.

harm: The perpetrator unlawfully entered a computer or computer system.

¶82  The offender is physically situated in the physical world, so her mens rea and the physical acts she uses to carry out the hacking are real-world phenomena, as is the illegality of the intrusion.  The actual entry into the computer or computer system presumably occurs in the virtual world, but this fact is not enough to prevent the principles set forth above from being used to impose liability for the intrusion because there is still a legally cognizable harm.  The harm of criminal trespass is a person’s entering into an area to which she does not have lawful access; the evil to be prevented is the violation of the owner of that area’s lawful right to exclude those to whom she has not granted access.  Conceptually, it makes no difference whether the area that is unlawfully accessed exists in the physical world or in the virtual world; the harm to the owner of that area is logically indistinguishable.

¶83  States have used this approach to criminalize hacking, though they tend to create a new offense, ”computer trespass,”rather than simply modifying their criminal trespass statutes to encompass unlawful entries into computers or computer systems.^[167]  Some have incorporated this new offense into the section of their criminal code that outlaws burglary and trespass, thereby implicitly acknowledging the functional and analytical similarities between the conduct at issue in both traditional and virtual trespass.^[168]

¶84  Cracking is obviously analogous to the crime of burglary: In both, the offender gains access to an area—again, a physical location in burglary and a virtual location in cracking—to which she does not lawfully have access and does so for the purpose of committing an offense, such as fraud or theft, once inside. As with hacking, it is easy to modify the four elements the state must prove to convict someone of traditional criminal trespass so that they encompass cracking:

actus reus: The perpetrator entered a computer or computer system.

mens rea: The perpetrator entered with the purpose of committing an offense inside.

attendant circumstances:  The perpetrator was not legally entitled to enter the computer or computer system in question;

harm: She unlawfully entered the computer or computer system to commit an offense inside.

¶85  As with hacking, the cracker is physically situated in the physical world, so her mens rea and the physical acts she uses to carry out the cracking are real-world phenomena, as is the illegality of the intrusion.  The actual entry into the computer or computer system presumably occurs in the “virtual world,” as would the steps he/she intends to take in order to commit an offense.  These facts are not enough to prevent the principles set forth above from being used to impose liability for the cracker’s conduct.  As with hacking, there is still a legally cognizable harm, such as the offender’s entering an area to which she does not have lawful access and thereby violating the owner of that area’s right to exclude those to whom she has not granted access.  As to this fact, it is conceptually irrelevant whether the location that is unlawfully accessed exists in the physical world or in the virtual world; the harm to the owner of that area is logically indistinguishable.

¶86  As with hacking, states have used this approach to outlaw hacking, though none have so far chosen to incorporate hacking into their burglary offenses.  For the most part, states have created what is in reality a “computer burglary” offense but have chosen either to make it a new offense or to define it as an aggravated form of computer trespass.^[169]  Again, as with hacking, some include this new offense in the section of their criminal code that outlaws burglary and trespass, thereby implicitly acknowledging the functional and analytical similarities between the conduct at issue in both the physical and the virtual worlds.^[170]

(8) Inchoate offenses

¶87  As section II explains, there are three inchoate offenses: attempt, conspiracy and solicitation.^[171]  Inchoate offenses address conduct that is designed to result in the commission of a regular, substantive offense such as robbery or homicide but for some reason fails to do so.^[172]  The law imposes criminal liability on the inchoate offender even though she failed to carry out the contemplated substantive offense (the “target” offense) on the theory that this person’s conduct demonstrates that she is sufficiently dangerous to warrant the imposition of sanctions.^[173]

¶88  We do not need to develop new “cyber-inchoate offenses” to deal with unsuccessful efforts to perpetrate offenses in or directed at cyberspace.  The existing inchoate offenses are perfectly adequate for this purpose.

¶89  Take hacking as an example: If someone successfully breaks into a computer system to which she does not have lawful access, this is the completed offense of hacking, or computer trespass.^[174] If someone tries, unsuccessfully, to break into such a system, this would be attempted hacking or attempted computer trespass.  To convict someone of this offense, the state would have to prove the following elements beyond a reasonable doubt:

actus reus: The perpetrator attempted to enter a computer or computer system.

mens rea: The perpetrator knew she was not legally entitled to enter the computer or computer system.

attendant circumstances: The perpetrator was not legally entitled to enter the computer or computer system.

harm: The perpetrator unlawfully attempted to enter a computer or computer system.

¶90  The mens rea of the perpetrator of the attempt and the perpetrator herself will be located in the physical world, but the actus reus of the offense (the unsuccessful effort to break into a computer or computer system) will almost certainly occur in the virtual world.  As explained above, this fact is conceptually irrelevant to the imposition of criminal liability for the substantive offense of computer trespass because the same harm occurs regardless of whether an intrusion occurs in the physical world or in the virtual world.^[175]

¶91  If someone agrees with another that one or both of them will break into a computer system to which they do not have lawful access, this is the offense of conspiring to commit hacking or computer trespass.  To convict someone of this offense, the state would have to prove the following elements beyond a reasonable doubt:

actus reus: The perpetrators agreed that either or both of them would enter a computer or computer system.

mens rea: The perpetrators knew they were not legally entitled to enter the computer or computer system.

attendant circumstances: The perpetrators were not legally entitled to enter the computer or computer system.

harm: The perpetrator conspired to enter a computer or computer system.

¶92  Both the mens rea of the conspirators and the conspirators themselves will be located in the physical world, but the actus reus of the offense (the formation of the criminal agreement) can occur wholly in the physical world,^[176] wholly in the virtual world,^[177] or partially in both worlds.^[178] The locus of the actus reus is conceptually irrelevant for the imposition of criminal liability, just as it would be if two people used email to form a conspiracy to commit murder.  The gravamen of the offense is the formation of the agreement; the method used to form it agreement is unimportant.^[179]

¶93  If someone asks another person, X, to break into a computer system to which neither has lawful access, this would be the offense of soliciting computer trespass.  To convict someone of this offense, the state would have to prove the following elements beyond a reasonable doubt:

actus reus: The perpetrator asked X to enter a computer or computer system.

mens rea: The perpetrator knew X was not legally entitled to enter the computer or computer system.

attendant circumstances: X was not legally entitled to enter the computer or computer system.

harm: The perpetrator solicited X to enter a computer or computer system.

¶94  Here, too, both the mens rea of the conspirators and the conspirators themselves will be located in the physical world, but the actus reus of the offense can occur wholly in the physical world,^[180] wholly in the virtual world,^[181] or partially in both worlds.^[182] The locus of the actus reus is conceptually irrelevant for the imposition of criminal liability, just as it would be if someone used email to make an offer to a contract killer.^[183] The gravamen of this offense is the perpetrator’s solicitation of the target offense; how she solicits the commission of the offense is unimportant.^[184]

(9) Non-offenses: cybervigilantism and cyberterrorism

¶95  Section II noted that two almost-universally condemned activities, vigilantism and terrorism, are not crimes in and of themselves.^[185]  As that section explained, the law finds it sufficient to prosecute those who engage in either type of activity for the crimes they commit in so doing.^[186]   This section argues that the same should be true for their cyber-counterparts.

¶96  Cybervigilantism has become a growing phenonmenon, sparked, like its real-world counterpart, by the belief that law enforcement is not doing an effective job of apprehending and punishing criminals.^[187]  One group of cybervigilantes, for example, has announced that they will hack into child pornography sites and wipe out hard drives containing the material they are determined to eradicate.^[188]  Like real world vigilantes, cybervigilantes should be prosecuted, if at all, for the crimes they commit while pursuing their goal of assisting law enforcement in the pursuit and sanctioning of criminals.^[189]  As this section demonstrates, the tactics they are likely to use against those whom they believe to have violated the law can be prosecuted under our existing law of crimes.^[190]

¶97  Terrorism in cyberspace has, so far, taken two different forms: hacktivism and cyberterrorism. Hacktivism can encompass hacking, but it is not the same thing: Hacktivism consists of using cyberspace to harass or sabotage sites that conduct activities or advocate philosophies that hacktivists find unacceptable.^[191]  And while hacktivists vehemently reject the notion that they are cyberterrorists,^[192] their conduct falls within the definition of terrorism: committing crimes to further a political agenda.^[193]  The crimes hacktivists commit tend to be nonviolent, such as vandalizing a web site, shutting it down by bombarding it with messages or diverting its traffic to another site.^[194]  As is explained above, these activities can be prosecuted as crimes; consequently, there is no need to define hacktivism as a unique cybercrime.

¶98  Cyberterrorism is the transposition of terrorist activities to cyberspace. It consists of using computer technology or cyberspace to commit crimes that usually involve death, personal injury or injury to property in order to advance a political agenda.^[195]  Just as traditional terrorists are prosecuted for the crimes they commit,^[196] so cyberterrorists can be prosecuted for the crimes they commit by exploiting cyberspace; there is, again, no need to devise a new “cybercrime” to sanction their conduct.^[197]

(10) Summary: Crime Analogues

¶99  The cybercrimes examined above are simply versions of existing offenses the commission of which involves the use of a computer or cyberspace.  They can, therefore, be adequately addressed by applying extant principles of criminal liability; as to these offenses, there is no need to create a new, distinct law of cybercrimes.  The next section considers whether there are, or can be, truly virtual crimes (offenses that are not analogous to any traditional offenses) and that therefore do require the articulation of such law.

Cybercrimes: Virtual Crimes?

¶100  As section II explains, the principles we have so far used to impose criminal liability were developed to deal with offenses the commission of which involves elements that manifest themselves exclusively in the physical world.^[198]  As section III demonstrates, these principles can also be used to impose liability when the commission of these offenses, or analogues of these offenses, involves one or more elements which manifest themselves to some extent in the virtual world of cyberspace.

¶101  This section considers whether there can be truly virtual crimes (offenses the constituent elements of which manifest themselves exclusively or almost exclusively in cyberspace).  If such offenses exist, it follows that they are the most likely candidates for the development of a law of cybercrimes, since they would be the most significant deviation from the empirical model for which extant principles of criminal liability were derived.

¶102  Events that occurred in a text-based online virtual community, LambdaMOO,^[199] some years ago prompted much discussion about whether “virtual rape”^[200] is or should be an offense, a bona fide virtual crime.^[201] The offender was a LambdaMOO participant known as “Mr. Bungle,” who had equipped himself with a “voodoo doll,” “a program, a piece of code” which lets its user

spoof other players. Spoofing is . . . a . . . term denoting the appropriation of a user's identity by other users; and in the context of the MOO this meant that by typing actions into the voodoo doll, its owner could make it appear as if another player were performing those actions.^[202]

¶103  Mr. Bungle logged into LambdaMOO one evening and used his voodoo doll to make it appear that a number of the female participants were

engaged in various forms of sexually humiliating activities. Thus, just to pick one example out of the swamp of Mr. Bungle's imaginings, the player who went by the name of Moonfire was obliged to see on her screen the words As if against her will, Moonfire jabs a steak knife up her ass, causing immense joy. You hear Mr. Bungle laughing evilly in the distance.^[203]

¶104  Given the emotional commitment LambdaMOO participants tended to invest in their online personas, the victims of Mr. Bungle’s attentions were shocked and traumatized by how he had manipulated their characters and by how powerless they had been to stop him.^[204]  Outraged by their suffering, some LambdaMOO participants demanded capital punishment for Mr. Bungle, insisting that his character be annihilated.^[205]  Others disagreed, which led to heated debates as to what should be done about Mr. Bungle.^[206]  Before the issue reached any formal resolution, one member of the community took matters into his own hands and eliminated Mr. Bungle’s persona and user account from the system, thereby terminating Mr. Bungle’s LambdaMOO existence.^[207]

¶105  The LambdaMOO incident generated much debate over whether conduct like Mr. Bungle’s should be handled by the criminal justice system or handled internally, by the virtual community in which the conduct occurred.^[208]  Essentially, those who argued for the imposition of criminal liability pointed to the trauma virtual rape inflicts on the victims, analogizing it to the trauma suffered by victims of traditional rape; those who argued against imposing such liability contended that incidents like this do not rise to the level of crimes because they occur only in the victims’ minds and do not involve the infliction of any physical injury.^[209]

¶106  It was clear, at any rate, that what Mr. Bungle did could not be prosecuted under extant rape laws: He did not commit the crime of rape, because that requires a physical assault.^[210] He did not commit the crime of pornography because what happened to those people that night in LambdaMOO differs from pornography in that rather than observing others engaging in (or depictions of others having engaged in) sexual activity^[211] the victims themselves (their virtual selves) were forced to engage in sexual activity against their will.  Nor did Mr. Bungle commit the crime of stalking. Stalking consists of a persistent pattern of conduct which puts the victim in fear of death or a physical assault;^[212] Mr. Bungle’s victims were actually forced to engage in sexual activity against their will, sexual activity which they found abhorrent.  For all these reasons, the events in LambdaMOO are currently the only reported instance of an essentially virtual crime, one in which all the elements of the offense except the suffering of the victims and the keystrokes Mr. Bungle used to inflict that suffering occurred in cyberspace.

¶107  Let us assume, for the sake of argument, that what Mr. Bungle did should require the imposition of some type of criminal liability.^[213] His conduct cannot constitute the crime of rape as it is currently defined because that crime consists of a perpetrator’s having nonconsensual sexual intercourse with a victim, often by using physical force.^[214] Since rape requires an actual physical assault on the victim, it necessarily occurs in the physical world.^[215]  Mr. Bungle’s conduct, on the other hand, occurs only in cyberspace,^[216] and the victim’s physical being is not the object of the assault; the assault targets the victim’s mind and emotions, not her body.^[217]

¶108  Can we impose criminal liability on Mr. Bungle by simply revising our definition of the crime of rape?  Or is this an instance in which the locus of an activity has moved so substantially into cyberspace that the activity evades traditional principles of criminal liability and must, therefore, be treated as a cybercrime?

¶109  The first step in answering these questions is determining whether Mr. Bungle’s conduct can be brought within our definition of the crime of rape.  As noted above, rape currently consists of having nonconsensual sexual intercourse with a victim, generally as the result of using physical force.^[218]  To prove this crime, therefore, the state must prove each of these elements beyond a reasonable doubt:

actus reus: The perpetrator used force to have sexual intercourse with the victim.

mens rea: The perpetrator purposely used force to have sexual intercourse with the victim, knowing she did not consent to the act.

attendant circumstances: The victim did not consent to the sexual intercourse.

harm: The victim is subject to a physical assault such as nonconsensual sexual intercourse.

¶110  It is simply not possible to redefine this crime so it encompasses physical rapes and also encompasses Mr. Bungle’s conduct and similar acts; this crime is too grounded in the physical world to survive such a revision.  How, for example, would one redefine the actus reus?  “Force” could be redefined to include the “use of physical force or the use of any non-corporeal means of overcoming the volition of an individual.”  And instead of being limited to “sexual intercourse,” the actus reus could be expanded to encompass “compelling someone to engage in and/or submit to acts, whether real or simulated, which they find objectionable.”  The offender’s mens rea would still be the purposeful use of compulsion to carry out the rape, the attendant circumstances would still be that the victim did not consent to the assault, and the harm would be the nonconsensual nature of the encounter. 

¶111  Technically, rape could be redefined in this fashion, but the result is unacceptably flawed.  It is so broad it could encompass encounters in cyberspace, at least, that fall far outside notions of virtual rape.  What if, for example, a participant in an online chat room used language another participant found offensive? Would that not fall within the definition of this crime?  By typing in the message, would the perpetrator-participant not be using non-corporeal means to overcome another’s volition and thereby subject the victim to acts which she found objectionable?  The new crime of rape might also encompass actions taken by those playing online games; one player might be found to have used non-corporeal means to overcome another’s volition and thereby subject the latter to simulated acts which the victim found objectionable.  And the same could be true in the physical world, as well. What if one person cut ahead of another in a line waiting to buy movie tickets?  Could not one characterize the act of “cutting in” line as a use of corporeal force which overcame the victim’s volition (her desire to remain at that particular point in line) and subjected her to an action he or she finds objectionable, in the sense of losing their place in line?  Because the redefined rape crime would have such a broad application, it would almost certainly be struck down as unconstitutionally void for vagueness.^[219]

¶112  Does this mean, then, that extant principles of criminal liability are inadequate to address cyberspace phenomena such as virtual rape?  It does and it does not.  As this example demonstrates, we will not be able to impose criminal liability for all the varieties of misconduct that will erupt in cyberspace simply by broadening our definitions of extant offenses so they encompass both physical and virtual activity.  We can, as section III demonstrates,^[220] use this technique to address certain kinds of misconduct that will manifest itself in cyberspace; when the misconduct involves acts, intent, circumstances and harms that are empirically and functionally analogous to the acts, intent, circumstances and harms addressed by an extant offense, we can probably use this approach to impose criminal liability on those who engage in that misconduct.  The more closely analogous cyber-situated misconduct is to misconduct traditionally understood as criminal, the easier it will be to utilize this approach.  But as we move more and more of our activities into cyberspace, we will certainly see new kinds of misconduct emerging, misconduct that may have little in common with the behaviors or harms our current repertoire of traditional crimes were devised to address.  For these emerging types of misbehavior, we will almost certainly have to develop a new approach to imposing criminal liability. 

¶113  There are at least two different ways we can go about developing a new approach to imposing criminal liability for cyber-situated misconduct:  (1) we can use existing principles to define new crimes that encompass this kind of misconduct; or (2) we can devise new principles for imposing liability such as a distinct law of cybercrimes. If our goal is to ensure that miscreants cannot exploit cyberspace and engage in socially unacceptable conduct with impunity, and if we can achieve that goal by using existing principles, there seems to be no reason to devise new principles of criminal liability.  If this is not our only goal or if the tactic of devising new crimes is inadequate to achieve that goal, then we may have to devise a new law of cybercrimes. 

¶114  Let us begin with the possibility of defining new crimes to address cyber-situated misconduct.  We can deal with Mr. Bungle’s conduct by creating a new crime that targets the distinctive aspects of his conduct and the harm it produced.  Instead of trying to adapt a crime that was created to address the use of physical force and the resulting infliction of physical injury, we can start over and create a new crime that addresses the use of other, non-physical means to inflict psychic or emotional injury.  We could, for example, make it a crime to use a computer-generated communication to “maliciously inflict emotional distress” on someone.^[221]  In so doing, we implicitly recognize that the new domain of cyberspace can be used to engage in types of socially unacceptable conduct that have not been encountered before, just as the drafters of the first obscene telephone call statutes implicitly recognized that new technology’s potential for misuse.^[222]

¶115  Cyberspace, however, offers a much broader venue for misconduct than did the telephone or other twentieth-century technologies.  Indeed, cyberspace may force us to rethink certain of our views about the permissibility of predicating criminal liability on actions, and results, which occur elsewhere than in the physical world.  As the preceding section of this article explained, Anglo-American criminal law has generally been loath to impose liability unless certain elements, most notably an outlawed act or omission and a resulting harm, manifest themselves in the physical world.^[223]  This accounts for our refusal to impose liability for “thought crimes,” a hesitance based in part on the empirical difficulty of establishing liability for crimes such as imagining the king’s death,^[224] and also on the notion that we should be free to entertain whatever thoughts we like, as long as we make no effort to translate them into action that could harm our fellow citizens.^[225]  Those who will oppose the invention of new crimes targeting misconduct peculiar to cyberspace are likely to cite thought crimes as the proper analogy for what occurs in cyberspace, and argue that because this is a domain that exists outside of and apart from the physical we should not impose criminal liability for what occurs there.

¶116  This argument fails because thought crimes are not the proper analogy for the kinds of misbehavior that will occur in cyberspace.  Thought crimes are one of two kinds of virtual crime to emerge before the invention of cyberspace.  The other virtual crime is witchcraft.  Unlike the thought crime of imagining the king’s death, a crime no constituent element of which manifested itself in the real world,^[226] the crime of witchcraft incorporated both virtual and physical elements. Until 1951, English law made it a crime to engage in witchcraft, which was defined to include, among other things, “invoking any evil spirit, or consulting, covenanting with, entertaining, employing . . . or rewarding any evil spirit . . . or killing or otherwise hurting any person by such infernal arts” or using them to enrich oneself.^[227]  This crime really targeted two distinct harms: (1) using one’s power over the virtual world to summon evil spirits to injure other persons, to injure their property or to enrich oneself, and (2) the perpetrator of witchcraft was consorting with evil spirits in violation of God’s law.^[228] The first harm was often emphasized in witchcraft prosecutions, such as the Salem trials.^[229]

¶117  In the Western world, we no longer maintain the virtual crime of witchcraft because we no longer believe one can manipulate forces in the spectral world to have effects here in the physical world.^[230] For the sake of argument, though, let us assume we do entertain such a belief and, consequently, have resuscitated the above-described crime of witchcraft.  That crime would consist of the following elements:

actus reus: The perpetrator used evil spirits to harm another person, to harm another person’s property, or to enrich herself.

mens rea: The perpetrator purposely used evil spirits to accomplish one or more of these ends.

attendant circumstances: The perpetrator used evil spirits.

harm: Someone was injured, someone’s property was injured, or the perpetrator unlawfully enriched himself or herself.^[231]

¶118  If we assume it is possible to manipulate evil spirits to this end, then it is reasonable to impose liability on those who engage in it because, unlike the perpetrators of the thought crime of imagining the king’s death, the perpetrators of this offense are using virtual forces to have an effect upon persons and property in the physical world.  And it is striking to note the functional analogies between the elements set forth above and those articulated for Mr. Bungle’s virtual rape: In both instances, the perpetrator is physically situated in the physical world, which mean that at least a portion of the actus reus plus the offender’s mens rea are real-world phenomena.  In both, the perpetrator manipulates virtual forces to inflict harm on someone in the physical world.

¶119  So, what does all this mean?  It means that we must not decline to experiment with new crimes or new principles for imposing criminal liability because we encounter varieties of misconduct that are grounded in the virtual world of cyberspace.  We must accept the possibility that unacceptable social harms can be inflicted inside cyberspace and act accordingly, if and when the need to do so arises. 

¶120  For the present, it appears that we can adequately respond to new varieties of cyber-situated misconduct by using traditional principles of criminal law to devise new crimes that encompass these behaviors.  As long as we can do so, we do not need to devise a new law of cybercrimes to achieve this goal.

¶121  But, as noted above, we may have other goals in mind.  We may decide to create a distinct law of cybercrimes for social policy reasons because we believe there are sound reasons specifically to denounce cyber-situated misconduct.^[232]  We might do this symbolically, to make it clear that even though cyberspace is a new world, we will expect it to conform to the standards we enforce in our old (physical) world. 

¶122  We might also do this for pragmatic reasons: One could argue that cyber-situated misconduct warrants special treatment because cybercriminals can inflict greater harm than their real-world counterparts.  Someone who uses the Internet to perpetrate a fraud scheme, for example, may be able to defraud many more people than someone who uses the telephone to do so simply because telephones require simultaneous one-to-one communication whereas the Internet lets the perpetrator take advantage of distributed, automated interactions with hundreds or even thousands of victims.  Another argument for according special treatment to cybercriminals is the difficulty law enforcement officers and prosecutors face in bringing these offenders to justice.  It can be very difficult to identify the perpetrator of online offenses and, even when the perpetrators are identified, it can be very difficult to bring them to justice, given the evidentiary and jurisdictional problems that can arise.  We may decide that the greater potential magnitude of the harm inflicted by a cybercriminal or the greater likelihood he or she will avoid prosecution are additive harms that require treating these offenders differently. 

¶123  As to the magnitude of the harm inflicted, one can argue against defining a distinct cybercrime liability on the grounds that the criminal justice system can already address the harms inflicted by crimes of varying magnitude.  We do not, for example, use a distinct offense, “serial killing,” to prosecute those who take the lives of multiple victims; instead, prosecutors charge such offenders with multiple counts of homicide, one for each victim.^[233]  So, if a cybercriminal exploits cyberspace to commit fraud on a massive scale, a scale far exceeding that which could be committed in the physical world, we can adequately address the harms resulting from that conduct by charging the offender with hundreds or thousands of counts of fraud.^[234]  Another way to address the additive harm that can result from using cyberspace to perpetrate crimes, an approach that is not necessarily inconsistent with using multiple counts in the charging process, is to incorporate the harms inflicted by the defendant’s conduct into the sentencing process.^[235]  And a third approach is to make the use of a computer in committing a crime an aggravating factor, like the use of a weapon to commit a crime, that enhances the sentence imposed upon one who is convicted.^[236]

¶124  With regard to the difficulties involved in prosecuting an offender, this is not, absent conduct which rises to the level of obstructing justice or suborning perjury,^[237]something that has heretofore acted as a predicate for the imposition of criminal liability.^[238]  And unless we can somehow demonstrate that cybercriminals, even those who conduct their activities from outside the United States of America, somehow have a duty to make themselves amenable to prosecution in this country, it seems unlikely that this can provide a viable basis for recognizing a distinct body of cybercrimes.  The difficulties involved in apprehending and prosecuting cybercriminals is more appropriately addressed under the rules governing the exercise of jurisdiction in criminal cases and cooperation among sovereignties.^[239]  

¶125  Some also suggest that a distinct law of cybercrimes is needed to deter individuals from using computers or cyberspace to carry out unlawful activity.^[240]  The premise here is that having special cybercrime legislation emphasizes the seriousness with which society regards the use of cyberspace as a criminal tool and, in so doing, causes would-be offenders to assess the risks inherent in committing a cybercrime, a process which deters at least some percentage of them from engaging in such activity.  Unfortunately, deterrence is not this simple.  While the psychological intricacies of deterrence are too complex to address here, it is sufficient to point out that simply enacting statutes which impose criminal liability, even when that liability brings Draconian punishments, is unlikely to have a deterrent effect on law-breaking behavior.  Effective deterrence is a combination of many factors, one of which is the likelihood or, more accurately, the perceived likelihood of being apprehended and punished.^[241]  The perceived risk of being apprehended and punished for using a computer to carry out crimes is low, even in the United States, and is likely to remain low for the foreseeable future because law enforcement lacks the resources and expertise to deal with criminal activity that can span jurisdictions and that often involves the use of technology beyond the ken of the average investigator.^[242] 

¶126  It is, of course, possible that the time may come when there are reasons, such as the emergence of entirely new types of criminal activity, true virtual crimes, that require the adoption of a law of cybercrimes.  Treating cybercriminals differently could entail creating a special set of offenses encompassing their conduct,^[243] or it could rise to the level of creating an entirely new kind of criminal liability for their activities, such as a “super-criminal” liability.^[244]

¶127  At this point in time, however, all this that must remain in the realm of speculation, for we are only just beginning our encounters with virtual world misconduct.  The law is driven by what happens, not by what might happen.  The legal system will have to wait to see what, if any, distinct forms cyber-situated misconduct actually takes before it can settle upon its response.

   IV.   Conclusion: Cybercrimes?

¶128  At some point, we can do away with cybercrime laws because most crimes will involve computers in some way, and all crime will be cybercrime . . . ^[245]

¶129  To a great extent, this article argues that the author of the statement quoted above has things backward: It examines the principles we have traditionally used to impose liability for crimes and demonstrates that these principles can be extrapolated to encompass many, if not all, of the activities characterized as cybercrimes.  The article argues for taking this approach rather than trying to devise new principles of criminal liability, a new law of cybercrimes, to address anti-social behavior occurring within or committed via cyberspace. At the same time, it concedes there may be reasons for devising a new law of cybercrimes, such as the greater harms that can be inflicted by cybercriminals and the advantages they enjoy in avoiding detection and prosecution.  The article cautions, however, against taking hasty action in this regard, suggesting that we wait to see how crime in cyberspace evolves before committing ourselves to the adoption of cybercrime laws.