Intellectual Property Law Internet Law IT Law Computer Law

In 2004, Jerome Heckenkamp gained unauthorized access (colloquially, he hacked) to servers of corporations such as Qualcomm, Cygnus Solutions and eBay. Evidences of his actions were gathered also by a campus network administrator where Jerome’s computer was connected. He got them by hacking into the Heckenkamp’s Linux box. Judge Sidney R. Thomas ruled in the case United States v. Heckenkamp, 2007 U.S. App. LEXIS 7806 (9th Cir. 2007), PDF file format, that such actions were justified and did not violate the Fourth Amendment provisions.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Jeffrey Savoy’s “hacking searches” were acknowledged as “special needs” exception and therefore the FBI was not required to obtain a search warrant. Jerome Heckenkamp was convinced based on regulations included in 18 U.S.C.S. § 1030(a)(5)(B) - Computer Fraud and Abuse Act (CFAA) of 1986, Pub. L. No. 99-474, 100 Stat. 1213 (Oct. 16, 1986) amending Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (Oct. 12, 1984). In Polish law so-called “hacking” crimes are penalised by regulations included in the Act on June 6, 1997, Penal Code (Dziennik Ustaw No 88, pos. 553 on August 2, 1997, with later changes):

Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

In the international legal context such crimes were first covered by the Council of Europe Convention on Cybercrime signed in Budapest on November 23, 2001, CETS No. 185. The United States was one of 30 countries that signed the Convention on November 23, 2001. On August 2, 2006, the US Sentat ratified it.
You may find more information about the Fourth Amendment at www.findlaw.com website.

You maybe thought that the topic is about advertising or spam? Not at all. Just read what has the MPAA to offer at www.fightfilmtheft.org website. Greetings and thanks to Julek Barwik for pointing me about this action.

Kevin Poulsen wrote a program (1000 lines of Perl script), which was used by the Police to catch a person suspected of being a pedophile. A suspect was using well known www.myspace.com website for such illegal activity. More details in the article at www.wired.com website.

This image in the subject of this post may be an example of pedophiles tools and it is of course a joke about Sven Tudor-Miles’ situation. He scanned photographs of adult porn stars into his computer and altered them to make them look like girls aged under 18. He has been warned that he may face a prison sentence. More details in the article at www.timesonline.co.uk website. This remainds me also about last attempts to change criminal procedure law in the UK. I mean the Regulations of Investigatory Powers Act. Some people are afraid that it may lead to make a crime a refusal to disclose passwords of encrypted files/disks. I would say do not worry. Even if the British court sentence you there is always the European Court of Human Rights. Nobody can force you to testify agains yourself. The article on about this issue www.bbc.co.uk website.

Few weeks ago Oklahoma citizen - Debbie Foster, effectively pushed away RIAA’s indictment concerning sharing music files in P2P networks. Foster with her lawyer exposed complete lack of evidence and pokers’ bluff technique in phonographic industry lawyers’ conduct. Now Foster is on the offensive asking the court to force the RIAA to reimburse her attorney’s fees, whose rate is $200 per hour. Lost in their own game, they will probably have to pay the attorney’s fees, the judgment could be precedent for similar other cases. Article about that case at www.digitalmusic.weblogsinc.com.

Additionally it’s worth mentioning that Polish Constitutional Tribunal has ruled recently that attorney’s fees, paid by the person who was found not guilty in criminal case, will have to be obligatory reimbursed to him/her by the State. By meaning that, the CT stated that art. 632 of the Criminal Procedure Code is unconstitutional, due to the fact that it grants reimburse only as an exception.

About author:
Wojciech Gierszewski is Polish Kasubian native. He graduated law at the Law and Administration faculty at Nicolaus Copernicus University in Torun. Wojciech worked among others in collective society The Polish Society of the Phonographic Industry which is Polish National IFPI Group. He also worked in HetMan Agency which protects copyrights of software vendors such as Microsoft, Adobe, Corel, etc. It was at Hetman’s where he met Tomasz Rychlicki and started to cooperate with him. His interests in IP Law have started from music, which is one of his biggest passions. It has influenced his master thesis subject “Music piracy in the Internet – criminological and legal aspects”. At present he is working intensely on his career development. He hasn’t written any scientific article so far, but he hopes it will change in near future, and cooperation with Tomasz will bring to life their own law office.