06 May computer crimes

Following the famous evolution of information and communication technologies, new known harmful or dangerous behaviors become significant, in specie, under the name of computer crimes. Cybercrime is any act or fact contrary to criminal law, in which a computer has been involved as a subject, object or tool. Their structure is divided into computer crimes in the strict sense and in the broad sense. The first wording refers to those crimes which, in the same way as the legislative formulation of the incriminating case, have an element, substantial or circumstantial, which refers directly and unambiguously to the ICT in the description of the methods of conduct or other conditions of the crime. As an example, art. can be introduced. 640-three times from 640-five c.p. Those in a broad sense, instead, they represent that set of crimes that can also be committed through technological tools. Also here, as an example, it is possible to take as a reference the offenses relegated to the category of child pornography, which can also come out of the virtual schemes (or intersect with the technological element). Recently created, a tertium genus is also added: cyber crimes. The latter represent all the categories of crimes that take place within the Cyberspace. The phenomenon of computer viruses has been around since the 1980s. The danger of hacking became particularly evident in 1989, when investigations by the judicial authority in the federal republic of Germany identified some German hackers who were using international networks in order to access certain information inside American computers, British and other foreign countries, to sell what they found to the KGB, Soviet secret service. Always in the same period, a simple student named Robert Morris, in America, thanks to an Internet Worm of his own invention he managed to infect, in a few days, 6.000 computer. For the purpose of greater clarity, therefore, the tools used are: – Viruses – i.e. programs capable of performing certain actions, harmful or not, and to connect to other computers; – Worms – computer parasites that enter systems and reproduce themselves in order to create malfunctions and steal information; – Trojans – apparently a normal program that hides another one inside it designed to steal and steal information; – Backdoors – used to bypass the defenses imposed by a system with the aim of accessing a personal computer and gaining possession of it. Starting from the first aspect, in order to determine the locus commissi delicti it is necessary to take into consideration two founding articles of the penal matter. Pursuant to art. 3 c.p., the penal law obliges all those who, citizens or foreigners, are located within the territory of the state. Secondly, pursuant to Article. 6 c.p., comma 2, the offense is understood to have been committed in the territory of the State, when the action or omission that constitutes it took place therein in whole or in part, or the event that is a consequence of the action or omission occurred there. The new IT environment, based on the previous articles cited, poses new difficulties, since it has given the possibility of relocating and archiving their data into the hands of its users. To about, è utile uno sguardo alla Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (STD No. 108), 01/10/1985, which stands as the very first binding international instrument aimed at protecting the collection and processing of personal data (to protect people's right to privacy, taking into account the growing cross-border flow of personal data undergoing automatic processing). The second problem identified concerns detemporalization, regarding individual activities (as an example, just think of messaging applications, such as Whatsapp and Telegram, which they allow, through a specific method, to be able to program the sending of a certain message at the time that is most preferred or that is most useful for achieving a pre-set purpose). At his side, the deterritorialization of the user arises, since for the latter an "exclusively virtual presence" is required for the performance of any activity, which can also be guaranteed by several technological tools at the same time. The solutions that have followed are relegated to the European sphere. We can quote: – The Council of Europe Convention on Cybercrime, 23.11.2001, ratified with L. 18.03.2008, n. 48 (art. 22); – Framework Decision no. 2005/222/JHA Council on attacks against information systems, adopted the 24.2.2005 (art. 10); – The Proposal for a Directive of the European Parliament and of the Council on attacks against information systems, 30.9.2010, repealing the framework decision (art. 13); – Directive 2011/92/EU of the Parliament and of the Council, 13.12.2011, on the fight against the sexual abuse and sexual exploitation of children and child pornography (art.17). Comparing the provisions just reported, it can be seen how the Convention adopts the usual criterion of territoriality and that of active personality (the applicable law is identified on the basis of the nationality of the active subject of the crime); the Directive on the fight against the abuse and exploitation of minors, in the end, in addition to the criteria listed above, also refers to the principle of passive personality (or even CDs. defense principle, Italian law would apply where the interests of the Italian state are compromised).
It was October of 2021 when Mark Zuckerberg announced the change of name of his company from Facebook to Meta and the desire to concentrate forces on the creation of the Metaverse, a virtual reality capable of reproducing real-life activities as faithfully as possible. Two months later, the 10 December 2021, the Californian company has officially released Horizon Worlds, a multiplayer platform that is currently only available to adults in the United States and Canada with Oculus Quest, Meta's virtual reality viewers. It deals with, in other words, of the first concrete attempt to create a real Metaverse. In particular, to access the platform, in addition to the technological instrumentation dedicated to it, you must have a Facebook account. After that, once you choose your avatar, you can start interacting with other users using your own voice and explore a futuristic "world".. Senonché, as was perhaps to be expected, the possibility of relating to others gave rise to the first contraindications, against which Meta's recommendations against bullying and abuse were not used. Since the first experiences of using the platform, indeed, many women reported being verbally abused by other avatars with male voices, stalking and continuous unsolicited appreciation. Because of this, also came the first sexual harassment complaint on the Metaverse e, presumably, it won't be the last. In fact, a researcher who was testing the Horizon Worlds platform as an insider said that she was immediately approached and surrounded by various avatars who addressed her epithets and invitations of a sexual nature, and who then followed her for a long time in the virtual world, continuing to address her in various ways. All in the "presence" of other users who took pictures, they filmed and encouraged the abusers to continue. The story has inevitably sparked the debate not only on the degree of safety of the Metaverse, but also on the legal profiles of crimes committed in virtual reality and the protective measures necessary to "govern" a phenomenon of this magnitude. Under this point of view, our country too will have to start thinking about it. Given the almost immediate problems of the first applications of the Metaverse in the United States and Canada, perhaps it is appropriate to start thinking about the legal implications of such conduct in the Italian legal system which, presumably, it will not take long to be faced with the phenomenon. Starting with sexual violence, the latter is sanctioned with imprisonment by 6 a 12 years from the art. 609-to c.p., and consists in the conduct of him who with violence, threat or through abuse of authority, forces someone to perform or undergo sexual acts. Furthermore, the subparagraph 2 of the same provision imposes the same sanction if the crime is committed by abusing the mental or physical inferiority of the victim, or misleading the latter by substituting a person. Not, Given the above, the crucial issue for the purposes of the punishability of online conduct lies in the reference in the law to the fact of "performing or undergoing sexual acts", which could suggest the need for physical contact between the perpetrator and the victim. Moreover, born art. 609-bis on sexual violence, nor the subsequent art. 609-ter on the aggravating circumstances of the same, explicitly refer to the hypothesis of perpetration of the offense by electronic means. Actually, the Court of Cassation took care of making up for these literal shortcomings. Already in 2013, with sentence no. 19033 pronounced by the Third Criminal Section, the Court had found the attempted sexual assault committed by the one who, through threats, he wanted to force his victims to receive explicit photographs of himself, and to send him more in return. This orientation was then reaffirmed in subsequent rulings, in which the Stoats confirmed the convictions made during the appeal against subjects who had forced the victims to receive or send pornographic material, as well as to suffer suggestive and sexually explicit messages (Cass. Pen., Sez. III, sent. n. 17509/2018; Cass. Pen., Sez. III, judgment no. 25266/2020). It can therefore be stated that, according to the well-established jurisprudential orientation, in sexual violence committed with telematic means of remote communication, the lack of physical contact between the agent and the victim is not suitable or to exclude the commission of the crime pursuant to art. 609-to c.p., nor to guarantee the recognition of the mitigating circumstance of the minor fact. As for the harassment case, the conclusions may be similar, even if it is a very different case compared to the previous one e, mostly, not specifically designed for the protection of the sexual sphere. L’art. 660 c.p., indeed, punishes with imprisonment for up to six months or a fine of up to one euro 516 chi, in a public place or place open to the public, or by telephone, out of petulance or for any other blameworthy reason, causes harassment or inconvenience to someone. From reading the standard, then, it is noted that the legislator has not provided for an autonomous crime of sexual harassment, but rather a generic crime of harassment or disturbance to people, which can, depending on the concrete circumstances, also go to undermine the sexual sphere. In other words, the protected legal asset is, in this case, public and private tranquillity: in the first case, reference is made to the place where the pipeline is built, as it must be performed in a public place or open to the public; in the second juncture, instead, detects the use of the telephone or any other means capable of causing disturbance. In this case, it is the legislator himself who clearly provides for the possibility that the crime can also be committed remotely. However, although the sanctionability of the offense committed online is important, the sore point can be found precisely on the fact that, as anticipated, the crime pursuant to art. 660 c.p. it takes the form of a generic disturbance to public or private peace which does not specifically concern the sexual sphere. More precisely, our system lacks an alter ego of art. 222-33 of the French Criminal Code, which sanctions the so-called. sexual harassment. The latter consists precisely in the conduct of imposing on a person, in a repeated way, remarks or behaviors having a sexual or sexist connotation that harm your dignity due to their degrading or humiliating nature, or create an intimidating situation towards him, hostile or offensive. In conclusion, it is necessary to immediately take into account the fact that, although the Horizon Worlds platform is currently limited to adults of the United States and Canada, Italy will also have to deal with the Metaverse. From this point of view, the legal system is equipped with multiple regulatory and jurisprudential instruments aimed at protecting the victims of any crimes committed in virtual reality. Nonetheless, the need for further action cannot be hidden. In particular, it would be appropriate to integrate the art. 609-to c.p. on sexual violence with express reference to new technologies, not being satisfied with the only interpretative work of the Supreme Court. Furthermore, An integration of the Criminal Code with an ad hoc rule for sexual harassment would be equally appreciable, distinct from the generic case of art. 660, in the wake of the aforementioned French harcèlement sexuel. After that, a position taken by the European Union may be necessary, especially in light of the EU Regulation 2016/679 on the protection of personal data and the future Regulation on artificial intelligence, which testify how the approach aimed at "governing" the diffusion and use of new technologies is solidly continental. From a technical point of view, instead, following the first illegal acts committed on the Horizon Worlds platform, Meta has announced the creation of the c.d. Safe Zone. It deals with, in essence, a sort of "protective bubble" that users can activate when they feel threatened, preventing any other avatar from talking to them or approaching them. If at first glance it may seem like a decisive initiative, there is a concrete risk that contraindications will take over. Indeed, the danger is that of shifting the responsibilities to the users who are victims of the crimes, diverting attention from the authors e, mostly, from the company. The possible consequence, that is, is that if a person suffers a wrongdoing, this is diminished by the victim's failure to activate the Safe Zone.