First, the current situation of computer network crime
In recent years, due to the increasing number of crimes on the Internet, cyber crime has become a social security issue that developed and developing countries have to pay attention to. According to statistics, from 65438 to 0998, there were 547 computer intrusions investigated by the FBI, and 399 cases were closed. 1999, 1 154 cases were investigated and 9 12 cases were closed. In one year, it has doubled. Among them, the most prominent problem is the proliferation of online pornography, which seriously harms the physical and mental health of minors. The copyright of software, movies and records has been seriously infringed by piracy, and the losses of businesses are immeasurable. Internet commerce is plagued by fraud. Some credit cards were stolen, some goods sank into the sea, and some goods were not returned. What's more, hackers who have challenged computer and network crimes for decades are still the potential danger of the network. According to the statistics of Taiwan Province Province and Japan, cyber pornography cases in the two places account for 35%-50% of the total cyber crimes, and others account for a large proportion, followed by cyber fraud, selling illegal goods, intimidation and extortion, illegal intrusion, insult and slander. Therefore, network-related crimes abound. Prevention and control of cyber crime has become one of the topics that criminology and criminal law must face. Don Parker, an expert on computer crime, said that computer crime, as a specific type of crime, may no longer exist in the future, and all economic crimes will be computer crimes, because all kinds of industrial and commercial activities are inseparable from computers. An official in Scotland, England, went further. He claimed: "After 15, almost all crimes will involve computers."
Since 1986 discovered the first crime in China, the number of criminal cases using computer networks has increased rapidly. From 65438 to 0986, there were only nine cases of cyber crimes in China, which surged to more than 2700 in 2000 and more than 4500 last year. The amount involved in cyber crimes such as fraud, extortion and theft has increased from tens of thousands of yuan to millions of yuan, causing incalculable economic losses. At present, the latest trends of computer crimes in China are as follows: First, computer network crimes are particularly prominent in the financial industry. At present, due to the lack of sufficient attention paid by the financial community to computer crimes accompanying the development of financial electronization, a considerable number of banks, securities companies and other units have not established corresponding electronic business security prevention mechanisms and measures in terms of management system, personnel and technology, giving criminals an opportunity. The proportion of computer network crimes in the financial industry accounts for 6 1% of the total computer crimes. Second, "hackers" illegally invade or attack computer networks. At present, in China, most organizations providing Internet access services have been attacked and invaded by "hackers". Some "hackers" invade the network to set up free personal accounts for themselves and carry out cybercrime activities; Some spread comments that affect social stability on the internet; Some spread yellow information and obscene pictures on the internet; Some malicious attacks on the network, resulting in network paralysis. Third, foreign hostile organizations and hostile elements use the Internet to spread political rumors and carry out illegal religious propaganda and other activities that endanger national security.
Second, the causes of computer network crime
The biggest difference between computer network and traditional media communication is that criminals who cannot commit crimes by traditional media can find space and means to commit their illegal and criminal acts in computer network. Therefore, since the emergence of computer networks, cyber crimes have accompanied and increased day by day. Cybercrime has become a new hot spot in the network world and the legal society. To effectively stop and reduce computer crimes, we must first understand their root causes, so as to fundamentally prevent and control them according to law. The factors of cyber crime are complex and diverse, which can be summarized as the following six aspects:
Openness of computer network
Some people think that cyberspace is the fifth space relative to land, territorial sea, airspace and floating territory. In the real world of land, water and air, there are "borders" and "guards" everywhere, from small families with security doors behind bars to big countries with national defense guards, and all large and small units have walls and sentries. These settings have only one purpose: to prevent illegal intrusion, theft and destruction. Cyberspace is a big square, and it is "public". Now people are selflessly moving everything they can to cyberspace, which is called "resource sharing" and "informatization". However, after your "own" things are moved online, it is difficult to protect them as well as at your "home". However, after all, cyberspace has no obvious "home" (whether it is everyone or a small home) boundaries and lines of defense. If we imagine putting a piece of 100% safe protective clothing on the internet by technical and legal means, it must be as self-deceiving and ridiculous as the allusion "The emperor wears new clothes"-the emperor thinks he is wearing new clothes, but in fact he is not wearing anything! The network is a mirror image of the real world, but it has smashed the wall of the real world. Just like in a world with more "bad guys", but without the power of the police, we can imagine what the world would be like. It can be seen that the open and interactive computer network without strong defense (which is the advantage of the network itself) provides a very convenient and effective tool for criminals, enabling people who can't commit crimes in reality to commit crimes on the network, expanding and aggravating illegal acts in real life on the Internet.
(2) coveting illegal money online
A person who likes to be greedy for illegal money, as long as his computer operation level can get other people's money into his own hands, he will make full use of the computer as a tool and try his best to study and use it to obtain ill-gotten gains. The first computer crime discovered in the world (1966) and the first computer crime discovered in China (1986) belong to the type of seeking money. The former is that criminals tamper with computer programs to increase their deposits, while the latter uses computers to forge passbooks and seals to steal customers' deposits. So far, most conscious computer crimes in the world are stealing illegal money. In the real society, the greed for money is always the original motive force of illegal crimes, and so is the network society, so it is not surprising that the network property crime has the largest growth rate among all computer crimes.
(3) Prevent the backwardness of online technology.
At the beginning of 2000, Microsoft, Amazon, Yahoo and other famous websites were seriously attacked by hackers, which fully exposed the vulnerability of internal security of computer network systems. Most cyber criminals are professionals who are familiar with computer network technology and minors who are proficient in computers. Their relationship with computers has reached the level of infatuation, and they can understand the loopholes in computer networks, thus using high-tech means to break through the protection of network security systems and achieve their own criminal purposes. It can be seen that the backwardness of network technology prevention has become an external factor of computer crime.
Our country is restricted by people in computer hardware, so we can't produce CPU chips independently at present, and the key technologies of other parts of computer network system are also in the hands of foreign manufacturers, so we can't take technical precautions from the core hardware. Because China started late in information security, there is a big gap with the advanced level in the world, so most of the software used in China has security risks. According to 1999, American enterprises' investment in information security accounts for about 10%-20% of the total network investment, while China's investment is less than 1%. The annual output value of information security industry in the United States is about $60 billion, while that in China is only $500 million, a difference of 1000 times. At present, 90% websites in China have security holes. In terms of technical prevention, in order to ensure real security, we must develop security products with independent intellectual property rights. General software products can be internationalized, but security products must be their own, just as people say, "the battlefield can be launched anywhere, and the army must be their own."
(4) Cybercrime is difficult to detect.
Because the time and space span of the network exceeds the traditional limitation, and the operation has the characteristics of long distance, large scope, easy modification and no trace, it is quite difficult to investigate and obtain evidence of cyber crime. Criminals sometimes just sit at home, quietly press the keyboard or click the mouse, and it is completed in an instant, but detection requires a lot of patient and meticulous analysis, verification and screening. For example, Kevin Mitnick, a computer hacker of 15 years old, broke into the "North American Air Defense Command System". The United States used a powerful national agent to organize the FBI to deal with this matter, and it took a lot of effort to arrest the child. Cybercriminals, especially hackers, are just like the "chivalrous man" in Li Bai's poems in the Tang Dynasty. It is difficult to form a tangible encirclement to carry out the search as easily as in the three-dimensional space of land, water and air. In the network world, the technology of anti-crime and crime prevention must be higher than that of crime in order to effectively crack down on criminal activities, but the actual situation now is that the technology of anti-crime and crime prevention on the network often lags behind that of cyber crime, so the cost of catching a prisoner is far higher than the original cost of a prisoner doing a bad thing. Sometimes you may even put blood into it and get nothing. Because of the openness of the Internet, transnational crimes on the Internet are inevitable. Without international cooperation, many online crimes will not be discovered. Therefore, the online police in various countries are bound to overcome many difficulties in all aspects and become "Interpol".
We often say: "Everyone is equal before the law". But the premise of "equality" is that it must be before the law, when the eyes of the law look at us. Where there is no shining of law, there is no equality. Due to the backwardness of cyber crime investigation technology, the light of law will be less than that of many dark corners, thus allowing many criminals to escape the net. From this point of view, prevention and detection technology must be improved, but it is far from enough. Comprehensive use of other measures, especially increasing punishment and doubling the "additional" cost of prisoners' crimes, plays a warning and educational role of "killing chickens and monkeys" and "warning people who want to commit crimes".
(5) The concept of legal system is weak.
In cyberspace, because there are no tangible boundaries and obstacles like the real world, I gallop freely with curiosity, and sometimes I don't know whether to "touch the thunder" or "roll over" when crossing the boundary. This is the lack of border awareness and legal concept. Some teenagers lack the most basic understanding and control of the legality of their actions, don't know the boundaries of their actions, and do illegal and criminal things such as making computer viruses and destroying other people's information systems. They are complacent and self-righteous, and publicize and show off their talents and skills everywhere. Due to the rapid development of computer technology and communication technology, the Internet has become a public facility all over the world. If the vast number of internet users have no legal concept, when too many internet users break the law, even if there are perfect laws, it will not be cured, which will increase the cost of law enforcement and reduce the effect of network rule of law. In real life, the main legal problem of consumers is how to apply the law to protect their legitimate rights and interests from infringement, but in the online world, the main legal problem of consumers of online public facilities should be how to abide by the law to avoid possible illegal acts. Therefore, it is necessary to create a healthy, progressive, good and legal network environment through the joint efforts of the whole society.
(6) The network legislation is seriously lagging behind.
Any healthy and orderly environment is inseparable from legal norms, and so is the online world. However, the laws in the real society cannot be simply transplanted into the virtual network society. At present, the domestic legislation on network operation, management and use is still blank. Although legislation has some provisions in departments and government departments, it is basically simple, one-sided and emergency, and it is difficult to implement. For example, online copyright disputes emerge one after another, but the concept of "network" did not exist in 1990 when the Copyright Law was born, so it is difficult for the current copyright law to effectively deal with the current online copyright disputes. For another example, the original "Criminal Law" basically did not involve the problem of cyber crimes, only stipulated two kinds of computer crimes, far from covering all kinds of existing computer cyber crimes. Because many illegal and criminal acts have no legal basis for punishment, many criminals have been at large for a long time. The media all over the world transmit a lot of news about computer crimes every day, but in the end, very few people are really punished by law. In foreign countries, some criminals' online crimes have been found and reused. The construction of rule of law in network society is as important as the construction of network infrastructure and information, which can not be ignored. However, the lag of network legislation is a global problem, and even the network legislation in developed countries is far from perfect. Because the network is spreading on the one hand and developing on the other, it is difficult to formulate stable laws for the mature state of the network. Therefore, network legislation always lags behind for a long time, and it is not good to be anxious.
Under the condition that the network legal system is blank and imperfect, we can narrow the vacuum state of the network legal system by expanding the legal interpretation, so as to avoid the legal confidence that people have established in the real society from being hit in the network virtual society, so as to avoid the law-abiding people in the real society from doing illegal things in the network society, so as to avoid the criminals in the real society from using new means and doing whatever they want in the network society.
Three, the types and characteristics of computer network crime
Cybercrime refers to attacking and destroying other people's computer systems or databases without authorization or using the network to commit economic, criminal and other crimes. Cybercrime involves most social crimes, including almost all forms of crimes, except those direct interpersonal crimes, such as murder and rape, which cannot be directly committed through the network. Moreover, with the further development of the network, some new forms of crime are likely to appear in the future. Among all kinds of crimes, some infringement cases have appeared as early as in agriculture and industrial society, and now they have spread to the network field; Some crimes, such as network intrusion, are new products of the digital age of human society. Grasping this point is of great significance to truly understand cyber crime and how to prevent it, especially to formulate cyber law: new legislation is needed for new problems, and legal concepts and principles should be updated for old problems. ：
The types of computer network crimes can generally be divided into two categories: first, crimes against the network, which are generally manifested in the following aspects:
(1) the crime of stealing other people's network software and hardware technology;
(2) The crime of infringing the software copyright of others and the crime of counterfeiting hardware;
(3) the crime of illegally invading the network information system;
(4) the crime of destroying the network operation function;
Second, crimes using the Internet as a tool are mainly manifested in:
(1) The crime of stealing, misappropriating or defrauding others' finances by using the network system. (2) It is a crime to embezzle or misappropriate public funds or company funds through the Internet; (3) It is a crime of forging securities, financial bills and credit cards through the Internet. (4) the crime of spreading obscene articles through the Internet; (5) the crime of infringing on trade secrets, freedom of electronic communication, citizens' privacy and damaging the reputation of others through the Internet. (six) the use of the Internet to commit electronic terrorism, stir up trouble, disrupt social order crimes. (7) The crime of stealing state secrets and endangering state security through the Internet.
Just like looking at the tip of the iceberg, from the statistics of publicly reported cases, it is obviously impossible to correctly estimate the actual situation of computer network crime in China, but even so, the upward trend of computer network crime is still very obvious year by year. It mainly has the following characteristics:
1. Various themes. With the development of computer technology and the popularity of the Internet, people of all occupations, ages and identities may commit cyber crimes.
2. The object is younger. According to statistics, most cyber criminals are under the age of 35, with an average age of 25, and even many minors have not reached the age of criminal responsibility.
3. extremely smart. Criminals who use the Internet to commit crimes mostly have high computer professional technical knowledge and skilled operation skills. They often plan carefully before committing crimes and then commit criminal activities.
4. Very high concealment. In general criminal cases, there are physical evidence such as the scene, the murder weapon knife, blood, bullets, bloody clothes and so on. However, cybercrime only leaves electromagnetic records at most. These intangible operations are realized, and the direct purpose of crime is often to obtain these intangible electronic data and information. Criminals often leave no trace after committing crimes. Therefore, this kind of criminal behavior is not easy to be found, identified and detected. According to a statistic, only about 1% of cyber crimes have been found at present, and only about 4% of cases will be formally put on file for investigation.
5. Great social harm. With the increasing dependence of society on information network, the harm caused by using network crime is also increasing. Criminals can steal huge amounts of money with just a few keystrokes. Whether it's stealing property or secrets, or using information network as the object or tool of destruction, the harmfulness of cyber crime is extremely explosive.
6. The trend of internationalization is becoming more and more serious. Because the network has the characteristics of "time-space compression", cyber crime has broken through geographical restrictions and the internationalization trend is becoming more and more serious. This kind of cross-border and cross-regional crime is not easy to solve and is more harmful.
Fourth, the legislation of computer network crime.
With the rapid development of computer and network technology, it has penetrated into all levels of national economy and social life. How to further effectively combat and prevent computer network crimes, the author believes that to combat and prevent network illegal and criminal activities, it is necessary to "improve legislation, give priority to prevention, and combine crackdown and prevention."
1, the current situation of Chinese and western network legislation
Since the end of 1960s, more than 30 western countries have formulated corresponding computer and network laws and regulations according to their actual conditions. Sweden promulgated the data law in 1973, involving computer crimes, which is the first law to protect computer data in the world. 1978, Florida passed the Florida Computer Crime Act; Subsequently, 47 of the 50 States in the United States have successively promulgated computer crime laws. In 199 1, 12, the EU member states approved the software copyright law. In the same year, the Working Group on Computer Security of the International Joint Information Processing Committee (IFIP) held the first World Conference on Computer Security Law. Singapore issued regulations on 1996, requiring companies providing Internet services to supervise the information content entering the network, so as to prevent pornography and information dissemination that may easily lead to religious and political unrest. Up to now, more than 30 countries have formulated laws and regulations on computer and network crimes from different aspects, providing the necessary basis and motivation for preventing and cracking down on computer and network crimes. At the same time, it is also valuable information for computer and network legislation in China.
Compared with foreign countries, China's network legislation is still in its infancy. Since 1980s, China's information technology, information industry and information socialization have developed rapidly, and successively formulated information technology development policy, intellectual property protection policy, patent law, trademark law, copyright law and computer software protection regulations. These policies and legislation have created a good information environment for promoting the development of information technology and protecting intellectual property rights in China, and also prepared conditions for China's current network legislation.
1987, China formulated the "Safety Code for Electronic Computer Systems (Trial Draft)", which stipulated the main links involved in computer system safety, and provided a unified basis for computer system design, installation, operation, supervision and other departments to measure system safety. This is the first law on computer safety in China. 1994 the State Council 147 issued the regulations on the safety protection of computer information in People's Republic of China (PRC), followed by the interim provisions on the management of international networking of computer information networks in People's Republic of China (PRC). 1996, the State Council issued a notice, requiring computer users accessing the Internet to register in order to strengthen management. With the gradual popularization of the Internet, corresponding laws and regulations have been promulgated one after another, such as "Interim Measures for the Administration of Internet Domain Name Registration in China", "the Supreme People's Court's Interpretation on Several Issues Concerning the Legal Knowledge and Application in the Trial of Computer Network Domain Name Civil Disputes", "Measures for the Administration of Internet Information Services" and "NPC Standing Committee's Decision on Maintaining Internet Security". And China's network legislation is becoming more and more perfect.
2. Principles of computer network legislation
The particularity of the objects regulated by network laws and regulations determines that network legislation should follow the general legislative principles. In addition to the principles of seeking truth from facts, democratic centralism, combining principle with flexibility, and combining stability with adaptability, we should also pay attention to following special principles suitable for the characteristics of the network itself:
First, the principle of comprehensiveness requires that network legislation should have a broad vision and overall design, and should be comprehensively considered and balanced.
The second is the principle of gradual progress, which requires network legislation to maintain the security and order of the network reasonably and efficiently according to the needs of information legal system construction.
Third, the principle of initiative and feasibility. Network legislation should be based on the current reality and the prediction of the future legal system needs, grasp the initiative, make preparations early, actively legislate, and at the same time pay attention to adapting to the legislative environment and conditions, determine the order and focus, and carry out feasible operations.
Fourth, national and international principles. Network legislation should conform to the national conditions and have its own national characteristics. At the same time, it must conform to international standards and adapt to international laws and practices.
3. The main content of network legislation
From the content or type of network and future security regulations, it includes both the revision of old regulations and the conclusion of new regulations. It can be divided into these types: ① legal norms about the planning, construction, operation and management of information networks, mainly administrative legislation; (2) Legal norms to safeguard the rights of network users, mainly including intellectual property rights, user information and data protection laws; ③ Laws and regulations in the field of network finance and commerce, including e-finance law and e-commerce law; (4) Criminal laws and regulations for maintaining information network security and punishing computer network crimes, including computer crime law and anti-virus law; (5) computer litigation and computer evidence procedures and regulations, etc.
4. Defects of network legislation.
We should be soberly aware that the computer hunger crime in China will have some characteristics different from the present stage in the future, which will lead to some conflicts with the existing laws and regulations. Therefore, we must fully understand the shortcomings of the current criminal code of our country in the legislative setting of computer network crimes in order to better improve the legislation.
At present, the legislation on computer network crime in the Criminal Code has the following shortcomings:
(1) The influence of juvenile actors on the age system of criminal responsibility
According to the provisions of China's criminal law, a crime that has reached the age of 16 should bear criminal responsibility; A person who has reached the age of 14 but under the age of 16 commits the crime of intentional homicide, intentional injury, serious injury or death, rape, robbery, drug trafficking, arson, explosion and poisoning, and shall bear criminal responsibility. However, the trend of younger computer crimes has greatly increased the phenomenon of minors committing such harmful behaviors. For example, "juvenile hackers" are mostly under the age of 16. What about this behavior of adults? This will be a new problem for us. According to the current criminal law, we can't ask teenagers who commit computer infringement and cause serious harm to society to bear criminal responsibility, because "nullum crimen sine lege". But in computer crime, as long as he can commit this crime, no matter adults or minors, their harm to society is the same. How to treat computer network criminals who are under the age of responsibility and have great social harm will be a thorny problem that we must face and solve.
(2) Lack of accusation
At present, there are a large number of serious computer illegal acts that are illegal or even enough to constitute a crime in judicial practice. Because the clockwork regulation of computer network crime in China's criminal law is not perfect, such behavior will not be punished. We can see that there will be many such behaviors in the future. One is the act of illegally occupying other people's computer storage capacity, the other is the act of stealing computer time, and the third is the act of helping crime or teaching criminal methods.
(3) the impact on criminal judicial assistance
Up to now, due to the different scope and popularity of computers in the world, the computer crime rate in different countries and regions is very different, especially in countries with low computer usage, the incidence of computer crimes against their own countries is very low, and they usually attack other countries' computer systems or commit other criminal acts through computer networks. On the one hand, it is becoming more and more important to establish and improve the transnational judicial assistance system and extradition system for computer crimes. On the other hand, it also illustrates a practical problem, that is, some countries explicitly stipulate computer crimes, while others simply do not recognize computer network crimes. This obviously increases the difficulty of extradition or transnational judicial assistance.
Computer network crime is a high-tech crime and a new type of crime. Many criminals don't know what is forbidden, and even some juvenile criminals lack the concept of legal system. Driven by curiosity, they frequently use computers to commit crimes. In view of these situations, while perfecting the legislation of network management, we should also strengthen legal education, strengthen legal education, enhance the legal concept of relevant personnel, improve the quality of online law enforcement personnel, strengthen online law enforcement, and make every effort to crack down on computer network crimes.