An Analytical Overview On The Virtual Environmental Crime
| Author | Nasty Marian Vladoiu |
| Position | Ph.D., Associate Professor, Faculty of Law |
| Pages | 8-16 |
8 NASTY MARIAN VLĂDOIU
AN ANALYTICAL OVERVIEW ON THE VIRTUAL
ENVIRONMENTAL CRIME
Nasty Marian VL>DOIU*
“Transilvania” University, Braşov, Romania
Abstract
Informational society represents a new stage of human civilization, a new way of life, that
involves intensive use of information in all the aspects of human existence and activities, with a
significant economic and social impact.
Although the idea of cybercrime is not new, the national legislator still faces serious
regulatory issues of legislative instruments, able to assist in the prevention, detection and
prosecution of those who commit crimes in the ‘Virtual’ environment.
In this article, we have tried to outline the issues of criminality in the virtual environment,
hightlighting the need for a legislative framework in complete agreement with the extent of the
criminal phenomenon on the Internet, the technological development and the social requirements
concerning the protection of citizens against racism, xenophobia and anti-Semitism favored by the
use of online information transmission.
Keywords: informational society, criminal offences, cybercrime, virtual environment, racist
threat, xenophobic threat, anti-Semitism, data transmission, Internet, computer fraud.
1. Introduction
In the development of society, analysts known three stages: agrarian,
industrial and post-industrial. The end of a type of society and the beggining of
another were separated by revolutionary, important events: the Industrial
Revolution marked the transition to a new way of life of individuals and
communities and, the post-industrial society emerged during the Cold War led to
new opportunities for the development of society. Since 1973, the american
sociologist, Daniel Bell1, theorized the informational society, with the intention to
announce the end of industrial society, which followed the agrarian one.
In D. Bell’s view, post-industrial society has the following characteristics: the
transition from an economic activity based on the production of material goods to a
* E-mail: vladoiu.nasty@gmail.com.
Ph.D., Associate Professor, Faculty of Law.
1 D. Bell, The Coming of Post-Industrial Society. A Venture in Social Forecasting, New York: Basic
Books, 1973, Pp. xiii, 507.
Law Review vol. IV, issue 1, Januar
y
-June 2014, p. 8-16
An analytical overview on the virtual environmental crime 9
service-oriented economy; the predominance in the active population structure of the
professional and technical class; the crucial importance of theoretical knowledge as a
source of innovation and management (which is a guiding principle); the orientation to
the implementation of learning technology; the emergence of a new „intellectual
technology”.
In contrast to industrial society, post-industrial society is based on
knowledge and not on work. Knowledge, especially scientifical and practical
knowledge becomes the main means of production in post-industrial society, as
capital and labor were strategic resources for the development of industrial
society. The main feature of any society lies in the potential of basic research and
its scientific and technological resources (universities, scientific laboratories) and
of the ability to scientific and technological development. In this regard,
informational society becomes the basis of an intellectual technology, in which
theoretical knowledge and new information technologies are decisive for the
industrial development.
The information concept used here defines „data processing”: the
identification, the storage and the processing of datas becomes an essential
resource for the economic and social exchanges. Knowledge is used in the sense
of „organized set of statements or actions of ideas, presenting a rational analysis
of experimental results, which is transmitted in a systematic form through means
of communication”. In terms of the indicators specific for each type of society ,
informational society is the one that „the most important social, economic and
manufacturing advantages are linking to the information proccessing and
communications”2. The information becomes at the same time the main means
of production and the main product of such a society. Informational society is
based eminently on knowledge, on the generation and comparison of ideas.
Information becomes an essential resource in modern societies, politically,
economically and socially evolved. The dynamism and complexity of the new
type of society, which causes an increase in the volume and diversity of
processed information and, also the widespread use of information and
communication technologies (ICT), have led to the concept of informational society.
Informational society represents a new stage of human civilization, a new
way of life that involves intensive use of information in all the aspects of human
existence and activity, with a significant economic and social impact.
Informational society allows its members, wide access to information, a new way
of working and knowledge, amplifies the opportunity of economic globalization
and social cohesion. Informational society integrates the objectives of sustainable
development, based on social justice and equality of opportunity, freedom,
2 Roderick J.A. Little, The Analysis of Social Science Data with Missing Values, Sociological
Methods Research, November 1989, vol. 18, no. 2-3, p. 292-326, DOI: 10.1177/0049124189018002004.
10 NASTY MARIAN VLĂDOIU
cultural diversity and innovative development, environmental protection,
industrial and bussiness environment restructuring.
The dramatic changes in the past few years – the exponential growth of
mobile communications and internet users, the contribution of ICT sector to
economic growth and new job creation, the restructure of companies and
bussinesses in general in order to take advantage by the new technologies, the
accelerated development of e-commerce – support the transition from the
industrial to the post-industrial era. Digital technologies increase more and more
the easy access, the storage and the transmission of information. Digital
information can be transformed into new social and economic values, creating
huge opportunities for the new products and services development. Information
becomes the key resource for the digital economy.
The „new economy” term concerns in particular the current transformations
of economic activities as a result of the use of digital technologies, which provide
access, processing and storage of information in a cheaper and easier manner.
The construction of the new society model raises major socio-political issues
– both nationally and internationally – the mitigation of „digital divide”
phenomenon (the exclusion of some categories and regions or geographical areas
from the benefits of new technologies), the social cohesion, the conservation and
promotion of the specific culture of each nation and local communities, the
protection of citizens and consumer.
The only way that these problems could be solved is through a broad
dialogue between the governmental authorities, the representatives of bussiness
environment, of the academia and also of the civil society.
The Government and its institutions are designed to stimulate, conduct and
control the transition process to the informational society, by initiating a specific
regulatory framework and action programs.
In turn, the bussiness community in the field of information and
communications technologies should provide high-tech products and services, at
the most affodable prices and rates.
By the complexity of the phenomena involved in the development of
informational society, phenomena that must be understood and managed by the
necessity of a new culture of knowledge and learning in terms of using new
technologies, and also by the necessity of research, development and
technological innovation, the active participation of the academic community is also
essential.
The civil society also has such an active role in formulating requirements and
priorities regarding the use of new technologies to the benefit of the whole
society, as well as an responsive role to the policies and governmental
regulations. These roles can be exerted both at group level (non-guvernmental
organizations, professional associations etc.) and individual level.
An analytical overview on the virtual environmental crime 11
2. Romanian legislative guidelines in respect of offenses committed in the
virtual environment
Given the current conditions that allow easy access to information in the
virtual environment, regardless geographical or national boundaries, taking into
account the virtually limitless possibilities of the exchange and dissemination of
information, the evolution at technological level was practically inevitable. This
evolution, however, has led to a significant increase of crime, being recorded the
emergence of new crimes or the enhance of traditional crimes through the new
technologies.
While criminality has increased with the technological development, the
legal instruments of protection of citizens against abuses and harm, committed in
the virtual environment, are jumping through hoops, and it feels at normative
level, the strigent need for the legislator to devise ways that the access and
carrying out activities through computer systems be made safe for public order,
and those who exceed the limits to be held liable, particulary crimnally liable.
A definition of cybercrime was formulated by the group of experts of the
OECD in 1983, related to any misconduct, unethical or unauthorized, concerning
automatic treatment of data and/or data transmission.
According to UNAFEI3, by cybercrime in a broad sense we understand: any
crime in which a computer or a computer network is the subject of an offense, or
a computer or a network is the instrument of carrying out a crime. While, in a
narrow sense by cybercrime we understand: any offense in which the perpetrator
interferes without authorization, with the processes of automatic data processing.
In the study „The legal aspects of cybercrime in the informational society”
(the COMCRIM study)4 are presented categories and sub-categories of
cybercrimes, such as: violations of privacy, economic offenses, the penetration of
computer systems in order to overcome technical difficulties of security
(„hacking”), computer espionage, the piracy of computer programs, computer
sabotage, computer fraud, distribution of illegal or harmful information (racist
propaganda, dissemination or child pornography etc.), crimes against life, crimes
related to organized crime; electronic warfare.
Internally, there are now several legal provisions, included in special laws,
that regulate various acts in connection with the virtual environment or
informational society as whole. Are punishable as follows: crimes against the
confidentiality and integrity of data and systems; computer crimes; child
pornography through a computer system5; The offense of illegal access to a
3 The United Nations Asia and Far East Institute for the Prevention of Crime and the
Treatment of Offenders (UNAFEI) that has the aim of promoting the sound development of
criminal justice systems and mutual cooperation in Asia and the Pacific Region.
4 Realized for the European Commission by Ph.D. Professor Ulrich Sieber from University of
Wurzburg, Germany
5 Law no. 161/2003 on certain measures to ensure transparency in the exercise of public
dignities, public functions and in the business environment, the prevention and punishment of
corruption, published in the Official Gazette no. 279 of 21/04/2003
12 NASTY MARIAN VLĂDOIU
computer system and The offense of unauthorized access to an electronic
system6; The offense of altering the integrity of computer data and , also
destruction and theft offenses provided in article 217, respectively 208 of the
Romanian Criminal Code; computer forgery and the offense of forgery provided
in Title VII of the Criminal Code; Offenses involving computer fraud or
deception set in article 215; Offenses of forgery and deception in connection with
electronic payment instruments7 ; The offense of making available to the public,
including by Internet or other computer networks, without the consent of the
holders of rights, their works or products bearing rights related to copyright or
sui generis rights; The offense of public communication of works or products
bearing rights related to copyright; The offense of promoting pirated goods by
any means and in any manner, including by public notices or electronic means of
communication8.
Therefore, we observe a tendency of the national legislator to criminalize in
principle, facts of an economic nature, committed in the informational
environment, but also intellectual property offenses.
It is true that in terms of criminal groups activity, prevails the committing of
financial offenses, by which are targeted payments systems, credit and payment
products offered by financial institutions, hence the orientation of the legislator
to criminalize as many offenses designed to protect individuals’ data.
The specialization of offenders by type of crime and destination countries,
depending on the specific area, their permanent concern for the identification of
new operating methods and techniques, of new products that can be defrauded,
as well as computer systems that can be compromised, has led, in the past years,
to increase annual criminality in the virtual environment.
Using juvenils with skills in the use of new technologies, organized and
coordinated by leaders of specialized criminal groups, makes the judicial
authorities approach difficult, in identifiying the perpetrators of the virtual
environment and instituing criminal proceedings against them. However, the
ubiquity of the virtual environment, configure an extended character of gender
crimes, taking into account that the victims are targeted everywhere.
The criminal groups are using systems and equipment in different countries
of the world, so the judiciary's mission is carried out with difficulty. Computer
fraud, cyber attacks, electronic payment fraud and child pornography in the
online environment are criminal categories that require complex investigation,
specialized training of those called upon to enforce the law and involve high cost
equipment.
6 Law no. 297/2004 on the capital market, published in the Official Gazette no. 571
of 29/06/2004
7 Law no. 365/2002 on electronic commerce, republished under art. II of Law no. 121/2006
amending and supplementing Law no. 365/2002 on electronic commerce, published in the Official
Gazette of Romania, part I, no. 403 of 10/05/2006.
8 Law no. 8/1996 on copyright and related rights, published in Official Gazette, part I, no. 60,
of 26/03/1996, with subsequent amendments.
An analytical overview on the virtual environmental crime 13
In this excurse we will stop to analyze an interesting problem and of
dimension – phenomenon, regarding violations of the right to life protected in
the virtual environment through the promotion of antisemitic, negationistic,
racist and xenophobic attitudes.
protected in the virtual environment by We can thus speak of
cyber-Semitism, cyber-negationism, cyber-racism and cyber-xenophobia,
phenomenon adapted to the virtual environment, perfecting its techniques of
promotion and dissemination of ideas, finding new adepts among youth.
Romania is one of the few European countries which has adopted a
legislation in this area, however, we can see that the romanian legislator must
adjust the speed of response depending on the conquests of technology and
science, as the malevolent do.
3. The criminal protection of privacy against cybercrimes. Negationism,
anti-Semitism, racism and xenophobia in the virtual environment
In order to find ways of combating racism, anti-Semitism and xenophobia,
both at international and national level, there were concerns, particularly in the
legal environment, to be created legal instruments able to provide protection of
citizens injured in their rights and to facilitate the bringing to justice of those
responsible for such manifestations.
Thus, the legislation of states tends to impede the racist, negationist,
anti-Semitic and xenophobic attitudes, the threats and instigation of violence
against groups of individuals, having as theme, the discrimination based on race,
religion, nationality or ethnic origin.
The emergence and development of technologies, especially the expansion of
the use of digital technologies, which provide access, processing and storage of
information in a cheaper and easier manner, has led to the formation of an
attractive and easy accessible perimeter of manifestation, of racist and
xenophobic propaganda, and also allowed hiding the identity of individuals,
thus hindering the approach of authorities in finding the offenders and holding
them accountable.
Based on these realities, and the need to strenghten the mechanisms for
human rights protection, on January 28, 2003, there was signed in Strasbourg, an
Additional Protocol9 concerning the criminalisation of acts of a racist and
xenophobic nature committed through computer systems10, protocol ratified by
Law no. 105/2009 of the romanian legislature.
Internally, since 2002 existed Emergency Ordinance no. 31/2002 prohibiting
organizations and symbols of fascist, racist or xenophobic character and
9 Additional Protocol to the Convention on cybercrime, signed in Budapest on 23 November
2001, published in Official Gazette, Part I, no. 343 of 20/04/2004, European Treaty Series No. 185,
ratified by the Romanian Parliament by Law no. 64/2004.
10 To be seen at http://conventions.coe.int/treaty/en/Treaties/Html/189.htm.
14 NASTY MARIAN VLĂDOIU
promoting the cult of persons guilty of crimes against peace and humanity11,
subsequently approved by Law no. 107/200612 – which gave it the character of an
organic law.
Going through the provisions of this ordinance, we notice however, that it is
„in legal damage”, the direct consequence is that of an objective and practical
impossibility to hold accountable those who violate the criminal provisions in the
field.
Thus, after the adoption of Law no. 107/2006, came into force Law
no. 278/200613 amending and supplementing the Romanian Criminal Code,
which brings as novelty, the criminal liability of legal entities institution, an
institution that began to produce full legal effects within 90 days of its occurrence
in the Official Gazette.
Given that Law no. 278/2006 is also an organic law, it stands to reason that, if
there is any inconsistency between the provisions of the two organic laws, they
must be brought without delay in harmony and legality. The shortcoming in
terms of legality consists in that in Law no. 107/2006, facts are considered
offenses when the holder is an individual and are punishable as offenses, while
when they are committed by a legal person are punishable as misdemeanors.
The law also penalizes only the establishment of organizations with fascist, racist
and xenophobic nature, and the adherance to such organizations, while
individuals who promote ideas, concepts, doctrines of the same character, can not be held
liable, because their actions are not provided by the criminal law, which is an
essential feature for the existence of the crime, along with social danger and guilt.
For example, given the law in its current form, the individual can freely commit
such acts, having in consideration that the legislator criminalizes only the
organization and adherance, and also the supporting in any way of organizations with
this character, which is, according to us, a great escape of the legislator.
From a different perspective, besides the fact that for six years we have had
two organic laws with contrary legal provisions, regulating the same object, the
authorities with law enforcement officials were notified repeatedly, and the given
solutions were, in our opinion, legally unacceptable.
De lege ferenda, we believe therefore, that the immediately remedy for this
„legal damage” would be, that Law no. 107/2006 approving the Emergency
Ordinance no. 31/2002 prohibiting organizations and symbols of fascist, racist or
xenophobic character and promoting the cult of persons guilty of crimes against
peace and humanity, align to the provisions of the law that currently exist in the
Criminal Code and Criminal Procedure Code through an emergency ordinance.
On the other hand, taking into account the fact that by Law no. 105/2009 was
ratified the Additional Protocol concerning the criminalisation of acts of a racist
11 Published in Official Gazette, Part I, no. 214 of 28 March 2002.
12 Published in Official Gazette, Part I, no. 377 of 3 May 2006.
13 Published in the Official Gazette no. 601 of July 12, 2006.
An analytical overview on the virtual environmental crime 15
and xenophobic nature committed through computer systems, and that Chapter II
of the protocol, called even „Measures to be taken at national level” states that
„each party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences, acts of a racist and xenophobic nature committed through
computer systems”, we consider even more necessary the coverage of this
legislative gap, being required a well established legislative framework in the
prevention, detection and punishment of such offenses. Romania is obliged
under international instruments to which it is part of to develop a specific legal
system that regulates this type of crimes.
Through the domestically adoption of Law no. 161/2003, the Romanian
legislator has regulated this matter in the spirit of
The Convention on Cybercrime of the Council of Europe, in Title II of Book I,
entitled „Preventing and combating cybercrime”, Articles 34-67, but these
provisions cover just basically regulations and can not cover the criminal
diversity which run today by a simple mouse clicking and using a keyboard.
4. Conclusions
Currently, in Romania there are several effective legal provisions, included
in special laws on the criminal phenomenom and are being incriminated illegal
acts in connection with computer systems or the informational society as a
whole.
On the one hand, the rapid exchange of information, the exponential growth of
Internet users, the development of technologies, the emergence of new digital systems
and, on the other hand, the anonimity offered by computer systems, the messages
encryption methods used through them, the establishment of organized groups, the
structure and specialization of their members, the permanent concern to find new
operating modes, products that can be easily compromised, the possibility to transmit or
access illegally information without boundaries - represents reasonable grounds why
the national legislator should be preoccupied in creating a legislative framework
that meets the current social requirements, adapted to the new informational
society, in order that the level of legal protection in the online environment could
not be different from that of the „real environment”.
To note that cooperation between government, the bussiness community,
academia and civil society is particulary important for the outcome of legal
regulations to correspond to a high-tech level, for the proper development of
cybercrime to be proportionate to the prevention, detection and liability of
offenders, which is currently overtaken by the acumen of perpetrators and the
transboundary predominant character of their actions.
De lege ferenda, as the economic cybercrimes are the most numerous, should
be adopted an International Code of conduct on electronic commerce, in order to
have an uniform rule of the way that law should be applied in the virtual
environment.
16 NASTY MARIAN VLĂDOIU
Internally, in fulfilling the obligations assumed as party to international
instruments, it is more than necessary, the creation of a legal system regarding
the protection of citizens against acts of racist, xenophobic and anti-Semitic
nature, committed through computer systems.
Since, for the reasons shown above, the Emergency Ordinance no. 31/2002 is
in „legal damage”, and therefore, we deal with an inefficient law in this area, an
addition that has as subject the provisions stated in the Additional Protocol
concerning the criminalisation of acts of a racist and xenophobic nature
committed through computer systems , would create and harmonize a legislation
which can provide legal protection, both in real and virtual environment.
References
[1] Bell, D. (1973). The Coming of Post-Industrial Society. A Venture in Social
Forecasting, New York: Basic Books, Pp. xiii, 507
[2] Roderick J.A. (1989). Little, The Analysis of Social Science Data with Missing
Values, Sociological Methods Research, vol. 18, no. 2-3, p. 292-326, DOI: 10.1177/
0049124189018002004.
