Legal provisions regarding the judicial analysis of computer forgery and computer fraud
| Author | Senior Lecturer PhD Maria-Magdalena Bârsan |
| Position | Transilvania University, Department of Law |
| Pages | 66-71 |
66 MARIA-MAGDALENA BARSAN
LEGAL PROVISIONS REGARDING THE JUDICIAL ANALYSIS
OF COMPUTER FORGERY AND COMPUTER FRAUD
Senior Lecturer PhD Maria-Magdalena BÂRSAN
Transilvania University, Department of Law
E-mail: maria.m.barsan@unitbv.ro
Abstract
The current article aims to analyze the legal provisions regarding the Criminal Code
regulation of computer forgery and computer fraud. At the beginning of this study we will
point out some general notions regarding the concept of computer forgery. The analysis will
further present a comparative study of these two crimes as regulated in the Criminal Code
and in special laws. According to the new Criminal Code provisions, the lawmaker
regulated in Title II, Chapter IV named “ Fraud committed through computer systems and
electronic payment means”, the crime of computer fraud (article 249 Criminal Code); the
regulating text of this crime is the adjusted version of the one found in Law no 161/2003.
Title VI, Chapter III named “False statements” and it regulates the crime of computer
forgery as stated in article 48 of Law no 161/2003 regarding a series of measures to ensure
transparency in exercising public office, public functions and sanctioning of corruption. In
the end, we will list a practical section and we will provide examples.
Key words: cyber crime, computer forgery, computer fraud, computer data, computer
system, computer software.
Introduction
In an age where all areas of activity are conducted on computers, we can’t
imagine our daily life without the presence of a computer, an indispensable tool
for daily activities. The computer is currently used in contemporary society in all
police stations in urban and rural communities, in crime laboratories, in all judicial
analysis and statistics offices, in all authorities which fight cyber crimes, in courts
of law, in all institutions of the state, thus providing data bases of diverse
information. The technological revolution in computer science created several
advantages in all areas of social life; at the same time, this evolution caused a series
of social, economic and legal issues. The appearance of computers created the
possibility of committing crimes regulated by criminal law.
Committing such antisocial deeds, as regulated by criminal law, with the use
of computers, with the purpose of creating prejudice to people or companies
represents a real social danger. The first laws against cyber crimes regulated
provisions against acts of unjust access to data bases, unauthorized use of a
Law Review vol. VII, issue 2, Jul
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-December 2017, pp. 66-71
Legal provisions regarding the judicial analysis of computer forgery... 67
computer, fraud, sabotage, forgery. However, these crimes are just a small part of
possible crimes which can be committed by using a computer, as time has proven
that other crimes can be committed with the use of a computer; we mention the
most common ones: computer fraud, drug traffic, selling illegal weapons, child
pornography, computer forgery, but also some crimes regarding environmental
protection.
We can state that cyber crimes are international crimes as they know no
boundaries; such crimes can be committed on the territory of one country but
cause effects on another country’s territory; in such situations, international
cooperation is vital in order to fight this rod.
However optimal we consider protection for the automated handling of data,
regardless of how many protection tools are implemented and activated, we must
be convinced that, one way or another, sooner or later, these tools of protection are
to be deteriorated and those who commit such crimes will succeed. In the fight
against cyber crime, there is a surprising phenomenon: while there is sustained
effort to increase the security of computer systems and to discover new means to
prevent attacks from unauthorized people, the so-called “maniacs” of computers
permanently discover new means and new techniques of attack. The attack of a
hacker does not entail only internet connected computers. He acts on any
computer which is connected to a network and does not have a strong security
system. Computer science, being so diverse and in permanent change and
evolution led to a diversity of abuse by automated handling of computer data; thus
the number so such crimes increased significantly.
The black number of cyber crimes is the result of several causes, among
which” the sophisticated technology used by criminals; lack of adequate training
for police officers; lack of a concentrated plan of reaction from the victims of such
crimes in case of “attacks”, a situation which makes it impossible to estimate the
loss; the lack of adequate internal legislative instruments which must be actualized
from time to time depending on the time frame and speed of this developing rod;
the defective prioritization of the research operation of computer crimes.
One of the oldest protection measures is the technique of using a password
when entering a system, an application or simply for reading important
information. The password, as means of limited access to certain files and apps, is
frequently used in order to ensure the security of information. However, it is not
an infallible tool. Judicial practice shows that, for those who commit cyber crimes,
the password does not represent an obstacle, as they can decrypt it.
Along with technological evolution, contemporary society faces a series of
issues which created real possibilities of committing crimes against the patrimony,
crimes which are diverse and multiplied. The number of such computer crimes is
increasing permanently, an issue which has drawn attention of all worldwide
countries. Acknowledging the social danger of cyber crimes has drawn
incrimination of these deeds in most states of the world.
68 MARIA-MAGDALENA BARSAN
As a result, on an international level, the European Council initiated a series of
regulations regarding cyber crime. Similarly, the Romanian lawmaker
incriminated in the second title, chapter IV of the Criminal Code “patrimonial
fraud committed with the use of computer systems and electronic means of
payment”. The text regulating the crime of computer fraud, as stated in article 249
of the Criminal Code represents an adjustment of article 49 of Law no 161/20031,
as the only difference is the one regarding the sanctions; title VI generically called
“Forgery crimes”, in chapter III “Document forgery” incriminates in article 325 of
the Criminal Code, the crime of computer forgery, thus corresponding to the
provisions of article 48 of Law no 161/2003.
On November 23rd, 2001, member states of the European Council have drafted
and signed the “Convention on cyber crime”. Subsequently, on January 28th, 2003,
all member states signed “The additional protocol for the convention on cyber
crime for the incrimination of racial and xenophobic crimes committed with the
use of computer systems”.
Romania signed this additional protocol on October 9th, 2003. The Convention
and the Additional Protocol establish the background for investigating and
criminally sanctioning computer crimes, as well as interstate cooperation,
necessary for ending this rod. The Convention emphasizes the necessity of
criminally regulating deeds such as: illegal access to a computer system, the illegal
intercept of computer transmissions, computer forgery, computer fraud, internet
child pornography, violation of property rights and other connected rights and so
on.
The Romanian Parliament attempted to pass these directives by Law no
161/2003 regarding some measures for ensuring transparency in exercising public
offices and in business environment, the prevention and sanction of corruption.
In fighting cyber crime, we need a strong legislative background in regard to
the prevention, discovery and sanction of these deeds. Through the international
Conventions adopted as law, Romania is forced to develop a legislative system
specific for these types of crimes. Law no 161/2003 was the first step; subsequently
the lawmaker incriminated these deeds in the Criminal Code but, in order to
maintain the same rhythm of the fast and diverse evolution of these crimes, the
legislative activity must not stop.
In continuing with this article, I would like to analyze, from a judicial-criminal
perspective, the crimes of computer fraud and computer forgery, as regulated by
the provisions of the Criminal Code and special laws.
The crime of computer fraud is regulated in article 249 of the Criminal Code and
article 49 of Law no 161/2003. The text of the Criminal Code states the following:
“the deed of causing a patrimonial prejudice to a certain person by entering,
1 Law no 161/2003 regarding a series of measures to ensure transparency in exercising public
office, public functions and the sanctioning of corruption, published in the Official Bulletin no 279 of
April 21st, 2003, with subsequent changes.
Legal provisions regarding the judicial analysis of computer forgery... 69
altering or deleting computer data, or by restricting access to these information or
hindering in any way, the normal functioning of a computer system in order to
obtain a material benefit for oneself or for another, is a crime and shall be
punishable by no less than 3 years and no more than 12 of imprisonment”; article
249 of the Criminal Code states the following: “entering, altering or deleting
computer data, restricting access to such data or hindering in any way the
operation of a computer system in order to obtain a benefit for oneself or another,
if it has caused damage to a person, shall be punishable by no less than 2 and no
more than 7 years of imprisonment”.
For a better understanding of the terms of this crime, I believe it would be
useful to mention the definitions of certain terms used by the special law, which
were subsequently introduced in article 181 of the Criminal Code. According to the
provisions of Law 161/2003, a computer system is any device or an ensemble of
devices which are interconnected of in a functional relation, among which one or
more ensure the automated handling of data, with the help of a computer
program”; computer data is any representation of facts, information or concepts in
a form which can be handled by a computer system. This includes any computer
program which can help a computer system function.
By committing this crime, the patrimony of a person or a company suffers a
prejudice, which can be caused either by the counterfeiting and altering of
computer data, by restricting access to it or by hindering, in any way, the normal
functioning of a computer system. I believe that, even though the active subject of
this crime can be any person who is criminally liable, still only one person with
certain qualification in computer systems or a person who, by the nature of their
job, has access to certain data and computer systems, can commit this crime.
The lawmaker lists, within the legal text, the means by which this crime can be
committed, which we will discuss as follows. Entering computer data entails the
action of inserting computer data in a computer system which belongs to another
person, data which did not exist before in that computer system.
Altering computer data is the action of the perpetrator of entering or deleting
certain information or parts of computer data which result in producing new
computer data.
Deleting computer data is the perpetrator’s action of eliminating, completely or
partially, certain data stored in a computer system. To the same extent, we know
that modern technology allows for data retrieval from certain storage devices
which were destroyed or formatted. Deleting data can mean the same as
destruction of data and, among the most dangerous means of deleting or
destroying data, we mention computer viruses2.
Restricting access to computer data entails the perpetrator acts on system storage
device, so as the rightful user (a person or a company) can no longer retrieve data
2 I. Vasiu, Judicial computer science and informatics law, Albastra Publishing House, 2007
70 MARIA-MAGDALENA BARSAN
in its original state. Computer data can no longer be accessed by the rightful
user and he can no longer use this data. The most dangerous tools which can alter
computer data are viruses or Trojans which can reproduce and endanger other
programs or files by turning them in destructive programs.
The hindering of the normal functioning of a computer system entails the exercise of
any action by the perpetrator, likely to lead to the partial or total, permanent or
temporary impossibility of the rightful user to use that certain system.
The crime of computer fraud is only committed with direct intent, qualified by
purpose, as the perpetrator aims, by exercising certain actions on a computer
system, to obtain a material benefit for oneself or for another person, regardless of
whether this benefit was actually achieved, by this causing a patrimonial prejudice
to a person.
Also, it is good to know that, in order to ensure adequate protection when
working with computer systems but especially stored computer data, a series of
security measures are recommended. In article 35 of the law, letter h the lawmaker
defines security measures by using procedures, devices or specialized computer
programs designed for restricting or forbidding access to a computer system for
certain users.
A typical case of computer fraud is the deed of the person who changes the
information of a bank’s data base thus determining the transfer of money from one
person’s account to his own account.
The crime of computer forgery is regulated in article 48 of Law no 161/2013 and
the provisions of article 325 of the Criminal Law. The text of law states the
following: “the unlawful inputting, alteration or deletion of computer data, or
unlawful restriction of access to such data, resulting in inauthentic data, to be used
to produce legal consequences, constitutes an offense and shall be punishable by
no less than 2 and no more than 7 years of imprisonment”.
The lawmaker lists the alternative means of committing this crime, namely the
action of inputting, alteration or deletion of computer data, or the unlawful
restriction of access to such data. In order to understand these means of
committing the crime, we emphasize to previously mentioned explanations
regarding computer fraud.
The lawmaker also points out that it is necessary that the perpetrator’s action
on computer data was unlawfully executed, as if this condition is not met, the deed
will not be considered a crime. Also, using the computer data is not necessary;
obtaining such data in order to achieve a purpose, namely that of using data in
order to cause legal consequences.
A typical case of computer forgery was that of Patrick J. Schleibaum, former
financial director of the disk storage company Miniscribe Corp. He was found
guilty of forging the financial results of the company and using fake data in order
to obtain a better position for his company on the stock market.
Legal provisions regarding the judicial analysis of computer forgery... 71
Conclusions
At the end of this article, I would like to emphasize the ampleness to this
criminal phenomenon, a thing which was demonstrated by judicial practice which
continues to record more and more cases of computer fraud or computer forgery. I
believe we must be aware of the danger of such acts committed with the help of
computers and with serious consequences in the social environment. In an age of
information and technology, the computer is an absolute necessity and those who
commit crimes with the help of a computer aim to take revenge, to harm a
competitor and draw public attention.
Bibliography
1. M.Dobrinoiu, Computer crimes, C.H. Beck Publishing House, Bucharest,
2006
2. M.A. Hotca, M. Dobrinoiu, Crimes regulated by special laws, C.H. Beck
Publishing House, second edition, Bucharest, 2010
3. I.Vasiu, Prevention of computer crimes, Hamangiu Publishing House,
Bucharest, 2006
4. Romanian Criminal Code, Law no 286/2009 regarding the Criminal Code,
published in the Romanian Official Bulletin, part I, no 510 of July 24th, 2009.
5. P. Rau, Computer crime, 2001
6. I.Vasiu, Judicial computer science and informatics law, Albastra Publishing
House, Bucharest, 2007
7. C.Voicu, Al. Boroi, Business criminal law, third edition, C.H. Beck Publishing
House, Bucharest, 2006
8. V. Dobrinoiu, M.A. Hotca, M. Gorunescu, M. Dobrinoiu, I. Pascu, I. Chis, C.
Paun, N. Neagu, M.C. Sinescu, Comments of the new Criminal Code, Special Part,
second volume, Universul Juridic Publishing House, Bucharest, 2012
