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第二部分 教学资源 Section 1: The fight against cybercrime I. Summary of The fight against cybercrime Main idea of the passage The definition and bad effects of cybercrime and the reason for its wide spread and also the solution to it Part 1 （1-2） The definition of cybercrime? Part 2 (3-4) the great harm of cybercrime Part 3 (5-6) the reason why it is becoming serious Part 4 (7-8) the solution to cybercrime II. A tree diagram of the text : III.A retold version of The fight against cybercrime With the Internet expanding, committing crime online, that is, cybercrime, is becoming a very serious problem. Cybercrime is a relatively new term concerning any computer-related criminal offence. It can be classified into four categories, which can help identify and combat cybercrime. And also many large companies lose millions of dollars every year as a result of it. Cybercrime is becoming more and more serious because most companies suffering from it is unwilling to report cases of cybercrime for fear of losing customers. Another reason is that many governments have not passed laws against it. Besides, most countries don’t have arrangements for dealing with citizens of other countries. The solution to the problem is international cooperation. An agreement has been signed by many countries based on it. It is also important to make new laws. In a word, governments and private businesses must work together to stop the widespread problem of cybercrime. Section 2: Background information about Law and order I. 中国网络犯罪的现状及特点 据统计，我国从首例计算机犯罪(１９８６年利用计算机贪污案)被发现至今，涉及计算机网络的犯罪无论从犯罪类型还是发案率来看都在逐年大幅度上升。而国外有的犯罪学家也曾预言，“未来信息化社会犯罪的形式将主要是计算机网络犯罪”。 中国的计算机网络组建于２０世纪７０年代，１９９４年正式接入国际互联网。中国从１９９５年开始接受因特网入网申请以来，经过数年的发展，计算机网络已经走入千家万户，广泛应用在生产、服务、生活等各个领域。根据中国互联网络信息中心（ＣＮＮＩＣ）统计。中国上网计算机数量、上网用户人数的增幅位居世界前列。计算机网络的迅速发展，同时也使各种基于计算机网络的犯罪行为滋生蔓延，愈演愈烈。 何为网络犯罪 尽管网络犯罪的存在是一个不争的事实，然而关于网络犯罪的确切含义却众说纷纭、莫衷一是。其争议主要表现在以下两个方面： １．网络犯罪是犯罪学概念还是刑法学概念 最初的观点认为，网络犯罪是基于网络的出现而产生的一种新型犯罪现象。网络犯罪是社会上存在的诸多特殊犯罪形态之一，因此，网络犯罪是犯罪学概念而非刑法学概念。其后，有学者认为，在一定意义上，网络犯罪也可以作为刑法学上的概念使用，其理由是，１９９７年修订的刑法典第二百八十五条和二百八十六条规定的非法侵入计算机信息系统罪和破坏计算机信息系统罪在绝大多数的情形下，主要表现为网络犯罪。因此，刑法意义上所使用的网络犯罪一词，实际是指这两个罪名所涵盖的犯罪行为。但是，由于网络的出现，基于网络而实施的传统性犯罪对中国刑法的制定和具体适用产生了深远的影响，同时也在性质和数量上影响了网络犯罪行为的实施方式、危害结果及其法律后果。因此，从刑法理论上有必要将这些犯罪作为一类罪行进行研究，以发掘其共性，合理组织对此类犯罪的反应。我们赞同这样的看法。 网络犯罪是以网络为犯罪对象的犯罪还是通过网络实施的犯罪，在中国刑法学界有不同的观点。其争论源于计算机犯罪的工具犯与对象犯之争。从网络犯罪的共性出发，我们认为，对网络犯罪应当进行广义上的界定，即网络犯罪是以计算机网络为犯罪工具或者犯罪对象而实施的严重危害网络空间安全的行为。 网络作为维系社会及社会公众的一种手段，其价值体现在下列三个方面：（１）网络本身所具有的价值；（２）网络所维系社会公众的普遍价值；（３）网络对社会发展的价值。由此出发，仅从网络工具犯或网络对象犯两个角度对网络犯罪进行考察显然有失偏差。网络活动作为一种重要的社会生活现象，理应受到国家法律比较全面的调整。这种调整既体现在国家对网络运行的管理方面，也体现在对网络自身的保护上，还应当包括网络所维系的社会公众的人身权财产权的保护方面。因此，我们认为，网络犯罪应包括违反国家规定，直接危害网络安全及网络正常秩序的各种犯罪行为。 网络犯罪行为主要有哪些 通过对网络犯罪概念广义的界定，并考察我国当前的网络犯罪现状，我国当前的网络犯罪行为主要可以概括为以下几种形式： １．侵犯网络经营秩序的行为 维持正常的网络经营秩序，是网络组建与使用的前提，因而违反其正常经营秩序的行为，是一种严重的违法行为。目前，侵犯网络正常经营秩序的行为主要表现为：（１）擅自建立或者使用其他非法信息通道进行国际联网；（２）接入单位未经许可，非法从事国际联网经营活动；（３）侵犯他人域名权的行为。此类犯罪行为的共同特征是，其犯罪行为并不一定通过网络进行，但都与网络相关，其行为直接影响到网络的正常运营以及网络资源的合理使用。 ２．侵犯计算机信息系统的行为 计算机信息系统，是计算机网络的核心组成部分。维护计算机信息系统的安全性，是防止网络犯罪的首要目标。对于计算机信息系统的侵犯形式，主要有两种形态：（１）未经许可非法进入计算机信息系统，即我们通常所称的黑客行为；（２）破坏计算机信息系统，使其功能不能正常运行。这两种行为被认为是原始意义上或者是纯粹意义上的网络犯罪行为。 ３．侵犯计算机资产的行为 广义上的计算机资产，又称为计算机资源，包括计算机及其网络的硬件设备，所存储的数据，以及其他可以量化的资料等等。在实践中，通过网络侵犯计算机资产的行为主要有以下几方面：（１）破坏计算机网络硬件及数据的行为；（２）非法使用网络服务的行为；（３）非法窃取、使用他人的数据资料，包括侵犯他人知识产权、财产权等。 ４．滥用网络的行为 滥用网络行为，是指利用计算机网络实施的侵犯非计算机网络本身及其资源的其他非法使用网络的行为。事实上，这是一种纯粹的网络工具犯，因为该项犯罪行为并不涉及任何网络本身的安全性问题，而只是利用网络实施了传统的犯罪而已。有学者甚至认为，目前中国刑法中规定的绝大多数犯罪行为，基本上都可以利用网络来实施（当然类似强奸罪、遗弃罪等以身体接触才能实施的除外），而且事实上中国的犯罪也已经呈现“网络化”的趋势，网络恐怖主义、网络色情和金融犯罪等新型犯罪也屡屡发生。 综上可见，中国学界对网络犯罪的理解与欧洲理事会《关于网络犯罪的公约》对网络犯罪的界定非常接近。 当前中国网络犯罪的特点 １．犯罪形式多样化。网络犯罪的最初表现形式，以黑客行为居多。主要表现为对计算机信息系统的危害方面。近年来，网络犯罪逐渐向其他犯罪对象及领域蔓延，如通过网络实施的侵犯他人财产权利及人身权利的犯罪增多，并逐渐表现为网络犯罪的主要形式。 ２．犯罪行为明显化。随着网络使用日趋大众化，网络技术犯罪在网络犯罪中呈现出相对下降的趋势，针对社会普通公众的网络滥用犯罪呈上升趋势。因此，犯罪手段也较以往更加容易识别，行为表露，容易发觉。 ３．犯罪结果多元化。目前中国既存在严重危害网络安全的犯罪（如破坏计算机信息系统犯罪、侵犯计算机资产犯罪，这些犯罪的社会危害性大，危害结果难以预料），也存在通过网络实施的侵犯公民个人权利的犯罪行为。 II. Introduction to Cyber Crime The first recorded cyber crime took place in the year 1820! That is not surprising considering the fact that the abacus, which is thought to be the earliest form of a computer, has been around since 3500 B.C. in India, Japan and China. The era of modern computers, however, began with the analytical engine of Charles Babbage. In 1820, Joseph-Marie Jacquard, a textile manufacturer in France, produced the loom. This device allowed the repetition of a series of steps in the weaving of special fabrics. This resulted in a fear amongst Jacquard's employees that their traditional employment and livelihood were being threatened. They committed acts of sabotage to discourage Jacquard from further use of the new technology. This is the first recorded cyber crime! Today computers have come a long way, with neural networks and nano-computing promising to turn every atom in a glass of water into a computer capable of performing a Billion operations per second. Cyber crime is an evil having its origin in the growing dependence on computers in modern life. In a day and age when everything from microwave ovens and refrigerators to nuclear power plants is being run on computers, cyber crime has assumed rather sinister implications. Major cyber crimes in the recent past include the Citibank rip off. US $ 10 million were fraudulently transferred out of the bank and into a bank account in Switzerland. A Russian hacker group led by Vladimir Kevin, a renowned hacker, perpetrated the attack. The group compromised the bank's security systems. Vladimir was allegedly using his office computer at AO Saturn, a computer firm in St. Petersburg, Russia, to break into Citibank computers. He was finally arrested on Heathrow airport on his way to Switzerland Defining Cyber Crime At the onset, let us satisfactorily define "cyber crime" and differentiate it from "conventional Crime". 166 Computer crime can involve criminal activities that are traditional in nature, such as theft, fraud, forgery, defamation and mischief, all of which are subject to the Indian Penal Code. The abuse of computers has also given birth to a gamut of new age crimes that are addressed by the Information Technology Act, 2000. Defining cyber crimes, as "acts that are punishable by the Information Technology Act" would be unsuitable as the Indian Penal Code also covers many cyber crimes, such as email spoofing and cyber defamation, sending threatening emails etc. A simple yet sturdy definition of cyber crime would be "unlawful acts wherein the computer is either a tool or a target or both". Let us examine the acts wherein the computer is a tool for an unlawful act. This kind of activity usually involves a modification of a conventional crime by using computers. Some examples are: Financial crimes This would include cheating, credit card frauds, money laundering etc. To cite a recent case, a website offered to sell Alphonso mangoes at a throwaway price. Distrusting such a transaction, very few people responded to or supplied the website with their credit card numbers. These people were actually sent the Alphonso mangoes. The word about this website now spread like wildfire. Thousands of people from all over the country responded and ordered mangoes by providing their credit card numbers. The owners of what was later proven to be a bogus website then fled taking the numerous credit card numbers and proceeded to spend huge amounts of money much to the chagrin of the card owners. Cyber pornography This would include pornographic websites; pornographic magazines produced using computers (to publish and print the material) and the Internet (to download and transmit pornographic pictures, photos, writings etc). Recent Indian incidents revolving around cyber pornography include the Air Force Balbharati School case. A student of the Air Force Balbharati School, Delhi, was teased by all his classmates for having a pockmarked face. Tired of the cruel jokes, he decided to get back at his tormentors. He scanned photographs of his classmates and teachers, morphed them with nude photographs and put them up on a website that he uploaded on to a free web hosting service. It was only after the father of one of the class girls featured on the website objected and lodged a complaint with the police that any action was taken. In another incident, in Mumbai a Swiss couple would gather slum children and then would force them to appear for obscene photographs. They would then upload these photographs to websites specially designed for paedophiles. The Mumbai police arrested the couple for pornography. Sale of illegal articles This would include sale of narcotics, weapons and wildlife etc., by posting information on websites, auction websites, and bulletin boards or 167 simply by using email communication. E.g. many of the auction sites even in India are believed to be selling cocaine in the name of 'honey'. Online gambling There are millions of websites; all hosted on servers abroad, that offer online gambling. In fact, it is believed that many of these websites are actually fronts for money laundering. Intellectual Property crimes These include software piracy, copyright infringement, trademarks violations, theft of computer source code etc. Email spoofing A spoofed email is one that appears to originate from one source but actually has been sent from another source. E.g. Pooja has an e-mail address pooja@asianlaws.org. Her enemy, Sameer spoofs her e-mail and sends obscene messages to all her acquaintances. Since the e-mails appear to have originated from Pooja, her friends could take offence and relationships could be spoiled for life. Email spoofing can also cause monetary damage. In an American case, a teenager made millions of dollars by spreading false information about certain companies whose shares he had short sold. This misinformation was spread by sending spoofed emails, purportedly from news agencies like Reuters, to share brokers and investors who were informed that the companies were doing very badly. Even after the truth came out the values of the shares did not go back to the earlier levels and thousands of investors lost a lot of money. Forgery Counterfeit currency notes, postage and revenue stamps, mark sheets etc can be forged using sophisticated computers, printers and scanners. Outside many colleges across India, one finds touts soliciting the sale of fake mark sheets or even certificates. These are made using computers, and high quality scanners and printers. In fact, this has becoming a booming business involving thousands of Rupees being given to student gangs in exchange for these bogus but authentic looking certificates. Cyber Defamation This occurs when defamation takes place with the help of computers and / or the Internet. E.g. someone publishes defamatory matter about someone on a website or sends e-mails containing defamatory information to all of that person's friends. In a recent occurrence, Surekha (names of people have been changed), a young girl was about to be married to Suraj. She was really pleased because despite it being an arranged marriage, she had liked the boy. He had seemed to be open-minded and pleasant. Then, one day when she met Suraj, he looked worried and even a little upset. He was not really interested in talking to her. When asked he told her that, members of his family had been receiving e-mails that contained malicious things about Surekha's character. Some of them spoke of affairs, which she had had in the past. He told her 168 that, his parents were justifiably very upset and were also considering breaking off the engagement. Fortunately, Suraj was able to prevail upon his parents and the other elders of his house to approach the police instead of blindly believing what was contained in the mails. During investigation, it was revealed that the person sending those e-mails was none other than Surekha's stepfather. He had sent these e-mails so as to break up the marriage. The girl's marriage would have caused him to lose control of her property of which he was the guardian till she got married. Another famous case of cyber defamation occurred in America. All friends and relatives of a lady were beset with obscene e-mail messages appearing to originate from her account. These mails were giving the lady in question a bad name among her friends. The lady was an activist against pornography. In reality, a group of people displeased with her views and angry with her for opposing them had decided to get back at her by using such underhanded methods. In addition to sending spoofed obscene e-mails they also put up websites about her, that basically maligned her character and sent e-mails to her family and friends containing matter defaming her. Cyber stalking The Oxford dictionary defines stalking as "pursuing stealthily". Cyber stalking involves following a person's movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc. III. Computer Misuse Act 1990 The Computer Misuse Act 1990 (CMA) (and now amended by the Police And Justice Act 2006) was introduced primarily to deal with computer hacking. It contains three main offences to do with unauthorised acts relating to computers: Section 1 contains the basic ‘hacking' offence of gaining unauthorised access to any program or data held in a computer. Section 2 makes it an offence to commit a Section 1 offence with a view to commit, or facilitate the commission of, a further offence. Section 3 contains the offence of doing any unauthorised act in relation to a computer with intent: to impair the operation of any computer; or to prevent or hinder access to any program or data held in any computer; or to impair the operation of any such program or the reliability of such data; to enable any of the things to be done. knowing that any modification intended to be caused is unauthorised. Maximum sentences for these offences range from six months imprisonment and/or a £500 fine to ten years imprisonment and/or an unlimited fine. Hacking In terms of external threats FE and HE institutions must adopt technology security appropriate to the current risk level. From an infrastructure perspective this involves well established practice: build it secure educate users to operate it securely and encourage high risk users to invest in matching preventative measures where appropriate Virtually all hacking activities are offences under the CMA including accessing a computer where this is unauthorised. ‘Hacking' is a term which was originally used to describe the activities of computer enthusiasts who pitted their skills against the IT systems of governments and big businesses. However, for institutions hacking can cause serious financial disruption (e.g. through system downtime) and any consequent security breach may expose individual users to further crime. The Police And Justice Act 2006 expands the CMA provisions on unauthorised modification of computer material to criminalise someone who knowingly does an unauthorised act in relation to a computer with intent: to impair the operation of any computer, to prevent or hinder access to any program or data held in any computer, or to impair the operation of any program or data held in any computer. The intent need not be directed at any particular computer or any particular program or data. The UCISA Information Security Toolkit is intended to support UK Further and Higher Education Institutions in producing Information Security policies to address (and to demonstrate that they are addressing) threats to the confidentiality, integrity and availability of information systems for which they are responsible, and to help meet audit requirements. Details of the Toolkit can be found on the UCISA website at - http://www.ucisa.ac.uk/ist. Fraud and Theft Computer-related fraud can involve: altering computer input in an unauthorised way; destroying, suppressing, or stealing output; making unapproved changes to stored information; or amending or misusing programs (excluding virus infections). In addition to being a crime in terms of existing criminal legislation, such activity is likely to involve "unauthorised access" or “unauthorised modification” as laid out in the CMA 1990 (see above). Card-Not-Present Fraud In 2004, card fraud over the Internet cost the UK £117m (Source: Association for Payment Clearing Services – http://www.apacs.org.uk/). This crime usually entails fraudulently obtaining credit or other card details to make a purchase. The vast majority of this type of fraud involves the use of card details that have been dishonestly obtained through methods such as skimming or bin-raiding. The card details are then used to make fraudulent card-not-present transactions, often via the internet. The incidence of computer hackers actually stealing and using cardholder data from organisations computer networks or websites is thought to be very low. However FE and HE institutions staff and student are increasingly vulnerable to these types of card-not-present crimes as more and more payment transactions take place online. Denial of Service attacks Usually directed at the institution ‘Denial of Service' (DoS) is the name given to attacks involving hackers preventing the normal flow of internet traffic to websites of a college or university. Denial of Service attacks, where hackers overload networks with data in an effort to disable them, have risen 50%, a security report says. The Police And Justice Act 2006 now makes it an offence to launch a denial of service attack in the UK , punishable by up to ten years in prison. See further details on the OUT-LAW website at - UK bans denial of service attacks - Assistance with handling ‘Denial of Service' attacks can be found in ‘Guidance Note' on ‘ Investigating a denial-of-service attack' on the UKERNA JANET website. IV. Other Legislation Pornography The Obscene Publications Act 1959 & 1964 makes it illegal to publish material that tends to deprave and corrupt those viewing it. It is the activities being depicted which are the roots of the obscenity. The historical focus of UK legislation has been on criminalising distribution of ‘obscene' material rather than mere possession in private. However under the 1964 Act it is an offence to possess obscene material with an intention to publish for gain. So strictly, no attempt to publish is required for the crime to have been committed. All of this then applies equally to the electronic world. The test for what is ‘obscene' is set out in the Obscene Publications Acts 1959 and 1964 in s.1(1), and is defined as material which tends to ‘deprave and corrupt' those who are likely, having regard to all relevant circumstances, to read, see or hear it. Further, storage and transmission of material which is considered obscene is a criminal offence under s.2(1). Highly sensitive issues relating to online pornography tend to involve the viewing, possession, making and distribution of indecent images of children or serious stalking or harassment facilitated by communication technologies. Thus, the discovery of obscene materials on an FE or HE institution's computer is likely to be a serious criminal offence. Staff and students may be perpetrators, abettors or even victims of such cybercrime. Although it is the offenders, as individuals, that would face criminal prosecution an institution could suffer reputational damage if it is not seen to be acting responsibly. Only if an institution's senior office holders knowingly permit the publishing or storage of illegal obscene materials will they be likely to face criminal prosecution. There may be rare occasions where, for the purposes of research, obscene materials will be stored on computers. Usually institutions will have polices and practices in place to handle such research content. Only with prior approval and under strict senior management supervision should such content be tolerated. It is suggested that if illegal obscene materials are to be retained by an institution for the purposes of academic research then liaison with senior police authorities should take place. Child pornography Child pornography is pornography which features the sexual abuse of children. What draws this particular criminalisation is indecency with children i.e. the fact that a young person is involved. The law's approach to child pornography is that it is so offensive that possession as well as circulation of offending images is criminalised. The primary legislation consists of the Protection of Children Act 1978 (PCA) (which does not apply to Scotland or Northern Ireland) and the Criminal Justice Act 1988 (CJA) 1988. It is an offence to possess indecent images involving children (or convincing depictions thereof) . ‘Indecent' here means ‘sexually explicit' which is a more straightforward test than tending to ‘deprave and corrupt'. By virtue of s.160 of the CJA possession of such material is an offence and has a maximum five year penalty. Offences of taking, making and distribution are covered under the PCA and carry a maximum ten year penalty. Section 45 of the Sexual Offences Act 2003 amends the definition of 'child' - raising the relevant age from under 16 to under 18 years. Offences are also created by s.2, of the Obscene Publications Act 1959. It is an offence to publish an ‘obscene' article whether for gain or not; and this is further extended in the Criminal Justice Public Order Act 1994, ss.84-87 which deals specifically with 'Obscene publications and indecent photographs of children'. There is a defence provided which relates to possession without sufficient knowledge of the material or its nature. In Scotland, the Civic Government (Scotland) Act 1982 makes it an offence to publish obscene material. Prosecution is the responsibility of the Procurator Fiscal Service (s.52A Possession of indecent photographs of children). The Prevention of Sexual Offences (Scotland) Act 2005 extends these offences to apply to images of children under 18 years. The Obscene Publications Act 1959 does not extend to Northern Ireland . Obscene material is generally dealt with under the common law offence of publishing an obscene libel. As well as the negative publicity such an incident will attract to an institution will be the disruption as computers are likely to be confiscated as evidence. Details of the UK 's largest ever police hunt against internet paedophiles - Operation Ore can be read in the ‘Guardian report on Operation Ore' online . As above if an institution's senior office holders knowingly permit the publishing or storage of illegal child pornography materials they will they be likely to face criminal prosecution. Online Sexual Grooming The Sexual Offences Act 2003 came into force on 1 May 2004 and created an offence of meeting a child following sexual grooming. The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 delivers similar provisions for Scotland . It is now a crime to befriend a child on the internet or by other means and to meet or intend to meet the child with the intention of abusing them. The maximum sentence is 10 years imprisonment. A new civil preventative order, the ‘Risk of Sexual harm Order', may be imposed which will prohibit adults from engaging in inappropriate behaviour such as sexual conversations with children online. Any knowledge by an institution of such activity must be reported to the police right away. Extreme Material A proposal to make illegal the possession of a limited range of extreme pornographic material featuring adults is currently being considered by the Home Office. The proposal is to create a new offence of simple possession of pornographic material which is graphic and sexually explicit and which contains actual scenes or realistic depictions of serious violence, bestiality or necrophilia. For further information on this proposal you can access the document “Consultation: On the possession of extreme pornographic material” – online at - http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/30_08_05_porn_doc.pdf. Incitement to Racial and Religious Hatred The problem of illegal, harmful, distasteful or offensive content on FE or HE computer systems or the internet is of course not restricted to pornography. Internet content exists which contravenes the rules enacted to prevent the making of anti-religious statements (the law of blasphemy), the making of racist or inflammatory statements (incitement to racial hatred or "hate speech" rules - Race Relations Act 1976) and the making of politically subversive or seditious statements. Incitement to racial hatred is governed by section 21 of the Public Order Act 1986 which states that it is an offence for a person to publish or distribute material which is threatening or abusive or insulting if: it is intended thereby to stir up racial hatred, or having regard to all the circumstances, racial hatred is likely to be stirred thereby. The Racial and Religious Hatred Act 2006 gained Royal Assent on 16 February 2006. The Act makes it illegal to threaten people because of their religion, or to stir up hatred against a person because of their faith. It is designed to fill gaps in the current laws, which makes it illegal to threaten people on the basis of race or ethnic background. This Act extends to England and Wales only. The Crime and Disorder Act 1998 created new racially aggravated harassment and public order offences and came into force on 30 September 1998. For each of these new offences, the maximum penalty is higher than the maximum for the basic offence without the element of racial aggravation. What is involved is that either at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim hostility based on the victim's membership (or presumed membership) of a racial group. Or where the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group. Inciting either racial or religious hatred is therefore a criminal offence. Publishing and disseminating online materials that are likely to incite such hatred is also a criminal offence. Such incidents should be reported to the police. As corporate entities FE and HE institutions have a responsibility not to publish and disseminate racist materials in any format including electronically. As well as the likely reputational damage, as public authorities, FE and HE institutions have a general statutory duty under The Race Relations Act 1976 (as amended), in carrying out their functions, to consider the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between people of different racial groups. Online Harassment Harassment by email or online is a serious concern for many people. The Protection from Harassment Act 1997 is intended to prevent ‘stalking' and other similar unsocial conduct. It states that a person must not pursue a course of conduct which amounts to harassment of another, and which that persons knows, or ought to know, amounts to harassment of another. This includes by email or by other computer related means such as discussion forums, for example. FE and HE institutions must ensure that information technology facilities are not used in such a way. In England and Wales under s.1 of the Malicious Communications Act 1988 it is an offence to send an indecent, offensive or threatening letter, electronic communication or other article to another person and under s.43 Telecommunications Act 1984 it is a similar offence to send a telephone message which is indecent offensive or threatening. Both offences are punishable with up to six months imprisonment and/or a fine. Because the Malicious Communications Offence is wider ranging than the Telecommunications offence it is more likely to be charged by the Police than is the Telecommunications Act offence. Cases of online intimidation and harassment offence in Scotland are likely to be dealt with as a breach of the peace. Such activity is also likely to contravene the Acceptable Use Policies of most computer networks, including JANET - http://www.ja.net/services/publications/policy/aup.html. There has to be zero tolerance of such harassment and FE and HE institutions are advised to have clear incident handling procedures in place which come into operation when incidents arise. As employers FE and HE institutions need to take action to prevent harassment, encourage incidents to be reported, respond promptly and ensure policies are followed correctly. Legally, they have a common law duty of care, and responsibilities under health and safety and discrimination legislation. Further information on the responsibilities owed to students and staff can be found in the paper entitled “Legal Risks and Liabilities for IT Services in Further and Higher Education” by Christine Cooper on the JISC Legal website at - http://www.jisclegal.ac.uk/publications/legalRisks.htm. Also the duty of care owed to students aged 16-18 is examined in the paper “ Duty of Care in the Further and Higher Education Sectors” on the JISC Legal website at - http://www.jisclegal.ac.uk/publications/Dutyofcare.htm. Intellectual Property Offences - Copyright Crime Copyright law provides for criminal sanction in certain situations. In the UK generally civil remedies provide compensation to wronged intellectual property rights holders and most of the copyright criminal offences contained in the Copyright, Designs and Patents Act 1998 (CDPA), are concerned with commercial activity. Sections 107, 110 and 198 of the CDPA create criminal offences in relation to the making, distribution, importation, sale or hire of ‘infringing copies'. There is also a criminal offence of infringing performers' rights (s.198(1A)). Specifically, one of the offences covers the act of ‘distributing an article otherwise than in the course of business to such an extent as to affect prejudicially the owner of the copyright'. In addition, encouraging the copying of software for sale online could lead to the criminal offence of incitement. According to s.107 CDPA a criminal offence is committed if a person knowingly sells an infringing copy of a protected work without the permission of the copyright owner. In the UK, criminal penalties for companies and their directors can include unlimited fines and up to two years in prison. Section 107 has also been amended to create a criminal offence (as well as a civil offence) where a person knowingly infringes copyright in a work by communicating the work to the public in the course of business, or in a way that prejudicially affects the copyright owner. Further information on intellectual property crime, including counterfeiting and piracy, can be found on the UK Intellectual Property Office website at - http://www.ipo.gov.uk/crime.htm. Sharing and Downloading Music Music or other file-sharing can be unlawful under the CDPA and students or staff who trade, swap or share music files illegally over the internet open themselves up to the possibility of a civil legal action. FE and HE institutions are vulnerable to the extent that office holders and those responsible for compliance must not knowingly facilitate the commercial abuse of copyright law. Online Defamation Words are defamatory if they tend to reduce the reputation of an individual in the minds of ‘right-thinking members of society'. Although strictly not criminal law, a case decided in 2006, Keith-Smith v. Williams - QUEEN'S BENCH DIVISION [2006] All ER (D) 297 (Mar), illustrates the significance of online defamation in an institutional environment. The High Court awarded £10,000 in damages, and over £7,000 in costs against a college lecturer who was found to have committed libel through her postings to an internet message board. Details of the news story can be found on the Guardian Unlimited website at - http://www.guardian.co.uk/law/story/0,,1737445,00.html. FE and HE institutions that provide discussion forums, blogs and other similar facilities, should remind participants that the law of defamation applies in the online world. Also, they should ensure that they have well-known take-down procedures in the event of complaints in order to minimise the risk of liability as publisher. However routine monitoring of all information on an institution's systems should be avoided as this is likely to result in the institution being classified as an editor of the material and therefore subject to strict liability for defamation rather than the more lenient, notice-based standard that a distributor is held to in relation to third party provided material. For further information on potential liability in this area please see the separate JISC Legal Overview paper on Internet Service Providers Liability available from the JISC Legal website publications page online. Terrorism The Terrorism Act 2006 contains a comprehensive package of measures designed to ensure that the police, intelligence agencies and courts have the tools they require to tackle terrorism and bring perpetrators to justice. Although not specifically information technology related, new criminal offences have been created including: Acts Preparatory to Terrorism Encouragement to Terrorism Dissemination of Terrorist Publications Terrorist training offences It is likely that many of these crimes may well be committed or facilitated by computer use and FE and HE institutions should play their part in ensuring that such crimes are not committed or facilitated on their computer systems. Reporting suspicious activity to the police is essential. Universities and colleges are being urged by the UK government to take seriously the problem of extremism on their campuses. Practical guidance has been issued which points out universities and colleges responsibilities within the law and clarifies the legal position. You can find further details of the guidance (which is particular to England only) on the Department for Education and Skills website at - http://www.dfes.gov.uk/pns/DisplayPN.cgi?pn_id=2006_0170. V. The translation of Reading 反网络犯罪的斗争 女士们，先生们，近几年来因特网迅速扩张， 犯罪的机会也同样随之增加。 进行网络犯罪已经不再是理论上有可能性，我们正面临着这些犯罪分子， 这些犯罪分子以为这样做可以挣钱而几乎没有被捕的危险。打击这样的犯罪，即网络犯罪，要求极大的努力和各国协力工作。 网络犯罪是一个相对较新的词语， 指任何与电脑相关的犯罪。 欧洲议会将网络犯罪分为 四大类。首先，欧洲议会列出了涉及与安全相关的犯罪，如黑客行为（通过因特网非法访问他人的电脑和文件）和传播电脑病毒。第二,它指出了与电脑并非特别相关的犯罪,即此类犯罪可通过电脑来实现, 但也可不通过电脑来实现, 如欺诈就是此类犯罪的一种(一种通过欺骗他人来窃取钱财的犯罪). 第三, 它提到了含有冒犯性内容的网站, 或者鼓动仇恨和暴力的网站. 最后, 它定义了同侵犯知识产权和违反版权法相关的犯罪. 在欧洲会议, 我们感到, 当网络犯罪已成为一个严重问题的今天, 这样明确的分类是必要的， 可以帮助我们确认并打击网络犯罪. 这个问题变得如此的严重, 以致于所有的因特网用户都直接或间接地受到影响. 许多人都受到过电脑病毒, 还有很多人是电子邮件诈骗的目标. 电子邮件诈骗正在变得越来越普遍, 一些罪犯发送电子邮件, 承诺给钱或支票. 收到这些电子邮件的人被要求提供他们银行帐户的详细信息, 结果他们的钱被盗了. 尽管类似的针对个人的案例的数目不断增长, 但针对大公司的欺诈是一个更大的问题. 大公司对网络罪犯来说是适宜的目标, 这些网络罪犯常常是信息技术专家. 让我给你一些统计数据. 美国的一家私人机构, 电脑安全协会, 2002年进行的一项调查表明, 在被调查的503家最大的公司和政府部门中, 有90%的单位安全系统在前一年遭到入侵, 80% 的单位损失了数百万的美金. 而且, 我们可以准确地说, 网络犯罪每年让全世界商务损失几千亿美圆. 这包括网络犯罪分子向一些公司敲诈勒索并存入自己的银行帐户的保护费. 考虑到针对公司的网络犯罪的情况有多么恶劣, 许多人质疑为什么我们对于这些犯罪知之甚少. 主要原因是大多数网络犯罪都没有被报告. 到目前为止, 大多数公司不愿意报告网络犯罪的案例, 他们担心这样做, 他们就会失去顾客, 因为顾客可能认为公司不能保护他们的金钱. 有关网络犯罪的网络状况使形势更加复杂. 网络犯罪是非常新的概念, 许多政府还没有通过针对它的法律, 在他们的法律体系中有许多漏洞. 一些国家有针对通过电脑进行传统犯罪的法律, 但有些国家根本没有任何针对网络犯罪的法律. 另外, 大多数国家都没有如何对付实施网络犯罪的他国公民的手段. 犯罪可能在任何地方, 可以迅速移动, 尤其是在欧洲, 在那里的许多国家旅行是不需要签证的. 因此, 要追捕到网络犯罪几乎是不可能的. 这一问题的唯一解决办法就是国际合作. 这些罪犯的技术水平在世界属于先进水平, 这意味着政府必须集合他们的技术资源来跟进. 制定新的法律并为其建立类似于有关国际空域的国际标准也很重要. 这将允许各国跨境追踪罪犯. 人们已经采取步骤来达到这个目标, 2001年, 欧洲议会制定了有关电脑相关犯罪的协议, 美国, 加拿大, 日本和南非以及许多欧洲国家已经在协议上签字. 欧洲议会的多国协议表明合作生效了. 因特网创始人之一文特.瑟夫, 会毫无疑问地认同国际合作是对付网络犯罪的关键, 因为他曾说, 网络犯罪的问题是一个非常大的问题, 需要联合国成立特别机构来行使国际裁判或者国际管理员的角色. 当然, 政府和私人企业必须共同合作, 为消灭全球网络犯罪问题提供严密的安全. IV. The translation of Project 你和知识产权 什么是知识产权? 世界知识产权组织(WIPO)将知识产权定义为智力创造成果, 包括发明, 著作, 艺术品和商业中使用的标志和设计. 知识产权可以被分为两大类---工业产权, 如发明, 商标和工业设计, 以及版权, 这适用于小说, 电影, 音乐, 艺术作品和建筑设计. 为什么有法律保护知识产权? 大多数国家都通过了法律, 明确了不支付发明者或创造者报酬而复制知识产权的行为是违法的. 例如, 如果有人花了他或她的时间, 精力和金钱来写一本书, 即使只是草稿, 他或她也值得他人为此付费. 类似的是, 如果一家公司花了金钱研究和开发新产品, 那么该公司也应该为此得到报酬. 研究和开发在今天的商业世界中非常重要, 点子比其他许多物质东西更有价值. 一个例子就是未加工的金属并不怎么值钱, 但当它被制造成小轿车, 它就值钱了. 如何制造轿车的发电机, 车身和车轮的知识可能更加值钱. 而且, 如果公司甲的轿车比公司乙的轿车更受欢迎, 那么公司甲的轿车和名字本身(商标)更加值钱. 问题是什么? 许多国家目前正处于法律困境, 因为她们没有保护知识产权的法律, 知道最近才通过了有关法律. 在这些国家, 一些公司通过生产假冒或盗版产品挣钱. 为帮助控制这样的问题和促进国际贸易平稳发展, 世界贸易组织(WTO)成立了, 中国在2001年被欢迎加入了该组织. 世界贸易组织通过了法律来保护知识产权, 而加入该组织的条件之一就是这些法律在成员国必须强制执行. 为此, 中国政府在几部保护知识产权的法律上加上了自己的签名. 有人可能以为如果他们没有经商或偷窃商业创意, 知识产权法律就不会影响到他们. 但是在日常生活中, 我们现在面临着如何保护知识产权的决定. 例如, 大多数人复制过音乐或者视频资料, 或者从网上免费下载. 许多人复制并共享了计算机软件. 这种复制有版权的材料的行为被称为盗版. 仅2005年一年中, 由于非法复制和网络非法下载, 好莱坞的电影公司就损失了大约23亿美圆. 在2003年, 据估计, 全世界电脑中35%的软件是盗版的, 这对原开发者来说相当于290亿美圆的损失. 更广为流传的问题是音乐的拷贝, 尤其是随着新电脑程序的发展. 我们应该做什么? 消费者不应该购买盗版产品或者非法下载音乐和电影. 人们这样做, 每年使世界工业损失数亿美圆. 如果你买了你觉得是盗版的产品, 如品牌钱包, 可以要求查看表明其是真品的证明. 目前, 盗版音乐和软件给音乐和软件这两个产业带来了严重的挑战, 如果这两个产业不谨慎, 盗版会耗尽她们的生命. 因此, 许多此类公司正采取步骤保护自己, 打击盗版. 一些公司甚至提供免费的材料来打击盗版. 为帮助反盗版斗争更加深入, 人们应该在值得信赖的商店购买CD和DVD,而不是非法下载或者购买盗版版本.我们应该记住,许多公司期待着给它们的版权资料付费,不会简单地接受一个道歉.一些公司正在以盗版为由将一些人诉至法庭,许多人被罚款.请记住,谨慎和合法非常重要! |
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