5. Real-World Problems of Virtual Crime

I. THE CASE OF THE SNOOPING STAFFERS AND PEEKING POLITICO II. THE CASE OF THE PARENTAL NIGHTMARE III. THE CASE OF THE WIFI SPOOFER IV. CONCLUSION Theoretical debates about how best to address cybercrime have their place, but, in the real world, companies and individuals face new harmful criminal activity that poses unique technical and investigatory challenges. One of the greatest challenges posed by this new technology is how to combat wrongdoing effectively without netting innocent actors. This Article will present three case studies drawn from recent high-profile news stories to illustrate the pitfalls of legislating in the e-crimes arena. ********** Theoretical debates about how best to address cybercrime have their place, but, in the real world, companies and individuals face new harmful criminal activity that poses unique technical and investigatory challenges. There is nothing virtual about the real damage on-line crime can inflict off-line to victims. At the same time, technology is inviting uses that may result in significant, though sometimes inadvertent, criminal and civil liability. The law is hot always crystal clear about whether specific conduct is a crime, or about which tools investigators may use to collect evidence identifying the scope of the criminal activity and the perpetrator. In this Article, three stories based on real-life cases are described that highlight murky areas of the law. At the risk of spoiling the suspense, let me make the moral of these stories plain at the outset: specific laws directed to specific problems are important for two main reasons. First, they serve to guide law enforcement as to how investigations may be conducted with appropriate respect for civil liberties and privacy. Second, specific laws make clear to people the boundary of legally permissible conduct. Does this require endless effort to update the laws to keep pace with technology? Yes, but Congress returns every year with the job of making new laws. Will the pace of legal changes always be behind technological developments? Yes, but in my view the correct pace is a slow one. By the time a proposal has gone through the legislative process, the problem it seeks to address will have become more defined. Policy-makers are better able to craft a narrow and circumscribed law to address a clearly defined problem, and thus, minimize the risk of an overly expansive law that could chill innovation and technological development. I. THE CASE OF THE SNOOPING STAFFERS AND PEEKING POLITICO When Does Snooping Cross the Legal Line of Computer Abuse? The first ease-study arises from a computer investigation recently conducted within the Committee on the Judiciary of the United States Senate. The facts of this case are quite simple. In November 2003, conservative newspapers and a website--the Wall Street Journal editorial page, the Washington Times, and the Coalition for a Fair Judiciary--published excerpts from approximately 19 internal staff memoranda to Democratic Members of the Senate Judiciary Committee. (1) As is frequently the case with instances of computer security breaches, the scope of the breach is usually far more serious than the initial problem suggests. Indeed, these nineteen leaked memoranda were just the tip of the iceberg. The Senate Sergeant of Arms conducted a limited administrative, fact-finding at the bipartisan request of the Chairman of the Judiciary Committee and Senior Democratic Members into the circumstances surrounding the theft of the Democratic staff memoranda. (2) The report of the inquiry (the Pickle Report) revealed that a staffer for Senator Hatch and a staffer for Majority Leader Frist had, on a daily basis for almost 18 months, methodically accessed files of targeted Democratic staffers working on judicial nominations, taking almost 4,700 documents in the process. (3) Evidence was uncovered that the Hatch and Frist staffers took steps to cover their tracks and conceal their theft of the Democratic staff memoranda, including keeping the stolen documents in a zipped, i. …