THE PROTECTION OF DIGITAL INFORMATION AND PREVENTION OF ITS UNAUTHORIZED ACCESS AND USE IN CRIMINAL LAW

Carrie Leonetti, University of Oregon School of Law
Moonho Song, Chonbuk National University School of Law

Abstract

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article provides an overview of the traditional limitation of the crime of larceny to moveable property and some of the difficult issues of interpretation of the modern theft offence that are related to the inclusion of intangible property within its definition in both Korean and Anglo-American law. The crimes of larceny and/or fraud generally cannot be proven if important digital information is stolen, because intangible digital information is not properly considered property for the purpose of the crime of larceny, and the asportation and specific-intent elements of larceny cannot be proven with the theft of digital information. There is a great deal of confusion within existing criminal-law systems that has arisen with the criminal, unauthorized access to digital files, and the Article examines relevant histories and cases that have wrestled with the issue of whether digital property containing critical information can be regarded as property under new statutes and expansive judicial interpretations for the purpose of the criminal law of larceny/theft in the United States and Korea.

The two primary solutions that have been proposed in the scholarly literature, legislatures, and courts for the dilemma posed by stealing of digital information have been either including digital information within the definition of property for the purpose of the law of larceny/theft or creating specific statutes dealing with the taking of digital property. The Article critiques these two approaches and proposes instead the creation of a statutory unlawful-use offense to regulate the illegal use of digital property containing important information, analogous to the common statutory crime of unlawful use of a vehicle.