Chapter 12 Legal Issues Mens Rea and Criminal Recklessness

• Criminal law defines unacceptable behavior, created by federal and state governments.
• Tort law addresses wrongful acts causing harm, enabling individuals to sue.
• The chapter focuses on how computers are involved in cybercrime and tort activities.
• Criminal and tort law actions can sometimes be carried out against the same individual for the same actions.

General Criminal Law Concepts

• Cybercrimes are instances that involve the internet or computers as mediums for criminal activity.
• Crimes like computer trespass are prosecuted using existing laws extended to new tech.
• Federal judges sentence computer hackers and those posting illicit videos to prison.
• Hacking groups may be charged with website hijacking.
• Cyberextortion involves attempting to extort companies through threats like spam messages.
• A crime violates society's code of conduct.
• The American legal system is based largely on English common law, with the U.S. Constitution as the main source of law.
• Congress and state have laws for criminal offenses.
• Federal government prosecutes federal law violations, while state governments handle state law.

Main Principles of Criminal Law

• Criminal law seeks deterrence through punishment and rehabilitation, differing from civil law's compensation for injuries.
• Substantive criminal law defines conduct constituting a crime and establishes penalties.
• Governments can specify criminal penalties in the same statute that defines a crime or in a separate penalty statute.
• Wrongful conduct is in two basic types: acts universally wrong and acts wrong because they are prohibited.
• "Mala in se" refers to conduct inherently wrong like murder and rape.
• "Mala prohibita" defines conduct society prohibits, such intellectual property and traffic law violations.
• Cybercrimes often fall under mala prohibita.
• Crimes are grouped into misdemeanors (less severe, punishable by up to 1 year in prision) and felonies (more serious, punishable by over a year in prision).
• Jurisdictions can prosecute crimes as either a misdemeanor or a felony based on circumstances.

Elements of a Crime

• Criminal law requires a guilty mind ("mens rea") alongside the criminal act ("actus reus"), and conduct harms society.
• A government must prove "mens rea", "actus reus", and causation to show a crime.
• "Mens rea" refers to a person's intent to commit a crime, requiring knowing, intentional, or reckless engagement.
• "Actus reus" is the wrongful act, and must be voluntary.
• A wrongful act also covers the failure to act when there's a responsibility to do so.

Jurisdiction

• Courts can only hear cases within their jurisdiction which is the authority to hear, which include:
• Subject matter: the power of a court to decide certain cases.
• Personal: the ability to exercise power over a defendant.
• Federal courts have jurisdiction over federal laws and disputes between citizens of different states.
• State courts decide cases about state laws or actions within their boundaries.
• State courts exercise personal jurisdiction over those committing acts within the state.
• The "detrimental effects" test determines if a state can have jurisdiction over a person who committed crimes outside of the state provided that their acts caused harm within the state
• Cybercrimes and jurisdiction is challenging, as the internet crosses many geographic boundaries.
• International cooperation, such as the Council of Europe Convention on Cybercrime, is essential for cybercrime investigations.

Criminal procedure

• Governs how governments prosecute individuals, ensuring due process.
• Due process guarantees a fair and consistent process in the courts.
• Criminal procedure safeguards defendants' constitutional rights.
• Prosecutors play a critical role in deciding whether to press charges and file informations or get grand jury indictments.
• The initial hearing (arraignment) begins the formal court process, informing the defendant of the charges and rights.
• After arraignment, the defendant can enter a plea of guilty, not guilty, or nolo contendere.
• After the arraignment, the prosecution and the defendant attorneys will begin the discovery process where each side releases evidence.
• The government bears the highest burden of proof where its expected to prove someone's guilt beyond a reasonable doubt
• Punishments can include jail time, probation, financial penalties, or even death sentences.

Common Criminal Laws Used in Cyberspace

Electronic devices have four roles in crime, these are:

• Used to Commit a crime
• Facilitate a crime
• are the Target of the crime
• are a witness Cybercrimes use computers as a medium or target. Federal laws have the most significant impact due to the internet's global reach. Computer Fraud and Abuse Act (CFAA) passed in 1984, identifies computer crimes as distinct offenses, providing both criminal and civil penalties. Congress addressed computer-related offenses in a single act and limited the scope of protected computers to interstate and foreign commerce. Under the CFAA essentially any computer connected to the internet is a protected computer because the internet facilitates commerce between different states. CFAA treats protected computers as crime victim.

Computer trespass or intrusion

• The CFAA is the main federal law addressing cybercrime
• Some laws such as the CFAA expand definition to include computers used in interstate commerce
• State laws many also have computer trespass statutes that prohibit unauthorized access to computer systems or networks
• Many states consider intentionally entering a computer network without permission a crime
• Most trespass statutes don't address computer tampering or injection of viruses

Theft of information

• Theft of information via computer networks is on the rise in financial of personal data
• Financial gain is the motive for the crimes
• The 1998 Identity Theft and Assumption Deterrence Act makes identity theft a federal crime
• Investigations are lead by the U.S. Secret Service, FBI, U.S. Postal Inspection Service, and Social Security Administration's Office of the Inspector General

Interception of Communications Laws

• Laws forbid eavesdropping technologies without a court order.
• Communications include email, radio, electronic communications, data transmission, and telephone calls.
• The Wiretap Act governs real-time interception of communications. -Communications covered include email, radio communications, data transmissions, and telephone calls.
• The Electronic Communications Privacy Act (ECPA; 1986) the right to govern access to communications.
• The ECPA governs data transmissions and access to communications content.

Spam and Phishing Laws

• The CAN-SPAM Act covers unsolicited commercial email messages
• Spam is unsolicited electronic junk mail
• The CAN-SPAM Act has both civil and criminal provisions where the US department of Justice can prosecute hackers who use illegal email.
• The FTC enforces the civil pro visions of the CAN-SPAM Act and the same way they enforce unfair trade.
• The Act also details criminal provisions and penalties such as for accessing another's computer without permission to send spam

Cybersquatting

• Cybersquatting involves bad-faith registration of domain names that are trademarks.
• The Anti-Cybersquatting Consumer Protection Act (ACPA) protects trademarks names.
• To prove cybersquatting, the plaintiff must show that it was done in bad faith, that their conduct was done in bad faith, and with the intention to profit from the registration.

Malicious Acts

Common acts consist of malware, worms, viruses, and Trojan horses that can be prosecured under the CFAA Cyberstalking: the use of the internet to stalk another in threatening way

• State laws also tackle traditional stalking and cyberstalking in addition to:
• The Telephone Harrassment Act
• The Interstate Stalking and Prevention Act -The Interstate Communications Act

Well-Known Cybercrimes

• The CFAA is the main act use for federal prosecution of cybercrime
• The Morris worm and the Melissa virus are examples of some of the first illegal pieces of software on the web.

General Tort Law Concepts

• A tort is a wrongful act harming a person, leading to lawsuits for damages where injuries are reasonably recoved.
• Tort law has evolved mainly form English common law
• Tort law follows reasonable person standards
• There are three types of torts: strict liability, negligance and intentional

Strict Liability and Negligence Torts

• Strict liability means being responsible for actions regardless of intent or negligance (in unreasonably dangerous situations)
• Negligence torts means a person is reliable for anyone that their consequences could forseeably hart, and a plaintiff has to show the defendent owed a duty of due care. -Duty of due is a person's obligation to avoid acts can harm others
• Plainfiff must also show that the defendant breached the duty of due care, caused injures, and that those injures are compensable

Intentional Torts

• Intentional torts are when the defendant intended to perform a harmful act
• Intentional torts have many shared elements with crime
• A common defense to an intentional tort is that the plaintiff consented to the harmful action.

Civil Procedure

• Used when a plaintiff has to sue in a civil lawsuit to recover for tort injuries
• Law in procedure vary from one jurisdiction to the other
• Civil action begins when defendant files a complaint with the court containing a short statement of the incident and showing that the person who committed the incident is entitled to relief
• This is initiated by filing the case to begin collecting the correct information which happens in stages
• Plaintitt must make sure that the information is being asked for in a related topic

Electronic Discovery

• Electronic data can be important evidence, especially with information being stored digitally
• It used to be that the party trying to find the data had to make sure that it was presented correctly
• E-Discovery allows you to recover the data in its native state
• If a law suit arises, parties are obligated to preserve certain types of evidence, which in the modern day includes Electronically Stored Information or ESI
• If someone destroys the evidence to avoid penalty and a court finds out then a party can sanction a party if its determined they where maliciously avoiding paying the penalties through not following these rules

Common Tort Law Actions in Cyberspace

• "Cybertorts" are torts arising from online interactions.
• Traditional tort law principles apply on online interactions.
• Defamation is an intentional tort, occurs when someone speaks or publishes a false statement about another person that injures that person's reputation.
• Libel covers written defamation
• Slander includes oral defamation
• A protection for these is truth because you can call people out on the internet, making it more easy to file a lawsuit
• Defamation doesn't cover statements of opinion, and you do have responsibility as a content provider under section 230
• One of the biggest cases of defamation is when someone posts photos online creating another issue

Intentional Infliction of Emotional Distress

• IIED is known as the tort of outrage from actions being offensive to a reasonable person. To prove this a plaintiff must show:
• The defendant acted intentionally or recklessly.
• The defendant’s conduct was extreme and outrageous.
• The defendant’s conduct caused the plaintiff severe emotional distress.

Trespass Torts

Trespass torts involve trespass on land and trespass to chattels which consists of personal property damages. Court have also extended these to online situations like spam.

Privacy Torts

• Four are :
  • Intrusion into seclusion
  • Portrayal in a false light.
  • Appropriation of likeness or identity.
  • Public disclosure of private facts.
• Courts recognize privacy rights in electronic communication and equipment.
• Some questions that stay consistant with all privacy torts are:
  • a people having a true right of privacy in their use of the internet
  • people staying being responsible and not going to far
  • the court cases or laws that could apply in specific situations

Case Studies and Examples

• A CAN-SPAM act case the US government tried in 2004 involved an LLC sending spam about phony diet products which resulted in over a million messages getting sent out and years of prison time
• There were tons of websites that have defamed a-lot of people with "gossip websites"

Explore the role of 'mens rea' in criminal law, focusing on recklessness and its implications. Distinguish recklessness from accidental actions, examining relevant statutes like Wisconsin's first-degree reckless homicide law. Analyze scenarios and legal conclusions regarding intent and criminal behavior.