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Archive for: criminal law

Polish court rules on the location of the Internet

February 9th, 2010, Tomasz Rychlicki

Arnold Buzdygan brought a private accusation before the Regional Court for Wrocław Śródmieście V Criminal Division against Olgierd Rudak. The indictment was based on article 212 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

and article 216 § 2 of the CRC

§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using the mass media, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

The court in Wroclaw was obliged ex officio under article 35 § 1 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments, to examine its jurisdiction and if found otherwise, to refer the case to the court with the proper one. The Court in Wrocław held that pursuant to article 31 § 1 of the CRPC, the jurisdiction is where the offense was committed (the teritorial jurisdiction).

Buzdygan claimed that the offense was commited in the article entitled “Trolls scour in the Net” which was published in the Polish magazine Przekrój of 11 November 2007, in addition the allegedly defamatory content was broadcasted by TV stations such as TVN, Polsat and TVP, in their news and in the Internet. Judge Jolanta Pol-Kulig held that

both the editorial office of Przekrój and the abovementioned TV stations and the Internet are located in Warsaw, one should consider that the commitment of a crime to the detriment of the private prosecutor was performed in that place.

The court in an order of 31 December 2008, case file VK 1595/08, referred the case to the Regional Court for Warszawa Śródmieście II Criminal Division. Interestingly, the court in Wrocław did not consider that the alleged offense was not committed.

See also my post entitled “Who is an Internet troll?“.

Data retention in Poland

January 5th, 2010, Tomasz Rychlicki

The Regulation of the Minister of Infrastructure of 28 December 2009 on a detailed specification of data and types of operators of public telecommunications networks or providers of publicly available telecommunications services obliged for its retention and storage, Journal of Laws (Dziennik Ustaw) of 2009, No 226 item 1828, came into force on 1 January 2010. The operators will be obliged to perform so-called data retention for 2 years. They will have to collect data that allows to determine dialed numbers as well as a telephone used. The date and time of the connection, the type and location of the caller will also be loged. The same rules apply to Internet connections. The Regulation implements provisions of the Directive 2006/24/EC, on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. However, in the article entitled “Służby sprawdzą, skąd i kiedy dzwonimy“, the Polish newspaper Rzeczpospolita reports Maciej Rogalski’s, the vice-president of the Polish Chamber of Information Technology and Telecommunications, statement.

The suppliers of equipment related to the mass memory, use of the possibility of lobbying also within the EU, and have suggested solutions, which have appealed to special services. However, the usefulness of the new regulation is questionable, since the subsequent use of the information collected is like looking for a needle in a haystack.

Dumb lawmakers, please think what you do…

November 9th, 2009, Tomasz Rychlicki

Maybe the subject of this post is a little malicious but try to think about democracyless legislative body that under the influence of a strong lobby, wants to introduce legislation of “3 strikes” type, yet there is software instaled one someone’s computer that automatically downloads child pornography/copyrighted content? What about the fundamental right to defend/the right to fair trial?

The Associated Press tells the story of Michael Fiola, a former Massachusetts government employee who was arrested in 2007 after child porn was found on his state-issued laptop computer. He was eventually cleared of all charges after some digging by the defense found that the laptop was infected with malware that was ‘programmed to visit as many as 40 child porn sites per minute — an inhuman feat.

More details available at slashdot.org.

Was is the Polish-Russian cyberwar?

October 11th, 2009, Tomasz Rychlicki

According to Rzeczpospolita’s article entitled “Cyberattacks on Poland“, the Polish Internal Security Agency thanks to its cyberpatrols prevented tha largest cyberattack on Polish governmental website. The ISA thinks that these organized DDoS attempts were directed from the Russian Federation.

If you are interested in such issues see also my earlier post entitled “Cyberwar or Why States Need an International Law for Information Operations“.

Categories: computer crime | computer law | criminal law | law | legal regulations on computers networks.

A sequel to a story on websites that should be registered as press

January 14th, 2009, Tomasz Rychlicki

I wrote an article entitled “Polish Courts Say Websites Should Be Registered As Press” together with my good friend Piotr Waglowski. It was recently published in the Computer and Telecommunications Law Review, C.T.L.R. 2009, 15(1), 9-14.

There is also a sequel to Leszek Szymczak’s story. On 16 December 2008, the Regional Court in Słupsk issued a judgment, case file II K 367/08, in which Leszek Szymczak was acquitted from charges of “publishing press material featuring criminal content that publicly incited its readers to commit offences”. As you may read from our article, this case concerned posts that were published at the online forum of http://gazetabytowska.pl website (also accessible at http://gby.pl), which – according to the Public Prosecutor’s Office – included incitement to commit crime. Charges were based on article 49a of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), Journal of Laws (Dziennik Ustaw) No 5, item 24, with later amendmets.

An editor who unintentionally published press material that featured criminal content mentioned in article 37a hereof, shall be subject to a fine penalty or the restriction of liberty.

In connection with article 255 of the Criminal Code of 6 June 1997, Journal of Laws (Dziennik Ustaw) No. 88, item 553, with later amendments.

1. A person who publicly calls for committing an offence of a fiscal crime shall be subject to a fine penalty, the restriction of liberty or imprisonment for up to two years.
2. A person who publicly calls for committing a crime shall be subject to the restriction of liberty for up to three years.
3. A person who publicly praises the commitment of a crime shall be subject to a fine penalty amounting to up to 180 daily rates, the restriction of liberty or imprisonment for up to one year.

The court ruled that according to the Polish Press Law, Leszek Szymczak is the publisher and the editor, however the entries that were posted by visitors of his website did not constitute a press material.

See also my post entitled “Criminal minded“.

“Pirate” politician

December 23rd, 2008, Tomasz Rychlicki

According to a recent article which is available at wp.pl website, in Polish language, the court trial of Tomasz Sz., former member of the Civic Platform and deputy mayor (or vicepresident if you prefer) of Kraków city will start in mid-January next year. Tomasz Sz. along with other former Kraków city’s managers is facing charges for mismanagement and corruption. The prosecutor also alleges that Tomasz Sz. in order to achieve financial gain, downloaded from the Internet illegally copied software for GPS devices without the consent of its producer and programs that were created for removing security measures implemented to prohibit the operation of software in full. The price of the aforementioned software (with maps included) was estimated at 850 PLN. The said software was found on the Parliamentary’s laptop assigned to the politician.

Now, what about Polish criminal law regulations on computer (and not only as you can see from the above example) software copyright infringement? There are proper provisions included in the Criminal Code (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Chapter XXXV
Offences against Property
Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

§ 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

§ 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person.

§ 5. The provisions of § 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine].

There is also the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with later amendments.

Chapter 14
Criminal Liability
Art. 115. 1. Any person who usurps the authorship or misleads as to the authorship of all or part of the work or performance of another shall be liable to a term of imprisonment of up to 3 years, restriction of freedom or a fine.

2. Any person who, without mentioning the creator’s name or pseudonym, discloses the work of another either in its original or in a derived form, or a performance, or who publicly distorts a work, a performance, a phonogram or videogram or a broadcast, shall be liable to the same penalty.

3. Any person who, with a view to making a material profit in a manner other than that specified in paragraph 1 or 2, infringes the rights of the author or neighboring rights within the meaning of Articles 16, 17, 18, 19 paragraph 1, art. 19¹, 86, 94 paragraph 4 or article 97 or without performing his duties as mentioned in article 19³ paragraph 2, 20 paragraphs 1-4, 40 paragraph 1 or paragraph 2,
shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 116. 1. Any person who, without authorization or without respecting the conditions imposed, discloses another’s work in its original or in a derived form, or a performance, a phonogram or videogram or a broadcast shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement commits the acts specified in paragraph 1 with a view to deriving a material profit therefrom, he shall be liable to a term of imprisonment of up to three years.

3. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of six months to five years.

4. If the perpetrator of the infringement defined in paragraph 1 acts unintentionally, he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 117. 1. Any person who, without authorization or without respecting the conditions imposed, fixes or reproduces another’s work in its original version or in a derived form, or a performance, a phonogram or videogram or a broadcast, at the same time authorizing the disclosure thereof, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

Art. 118. 1. Any person who, with a view to making a material profit thereby, acquires the object constituting the material embodiment of a work, a performance, a program or a disclosed videogram, or reproduces it without authorization or without respecting the conditions imposed, assists in the sale of the said object, conceals it or assists in its concealment, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

3. If the perpetrator of the infringement defined in paragraph 1 or 2 on the basis of surrounding circumstances should and can assume that the item was obtained through criminal act,
he shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

Art. 118¹. 1. Any person who manufactures the devices or their components intended for the unauthorized removal or circumvention of effective technical measures against playing, copying or reproduction of works or objects of related rights or any person who is making a turnover of such devices or their components, or advertise them for sale or lease,
he shall be liable to a term of imprisonment of up to three years, restriction of freedom or a fine.

2. Any person who owns, maintains or uses the device or their components, referred to in paragraph. 1,
he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 119. Any person who obstructs or hinders the exercise of the right to monitor the use of a work or artistic performance, or who refuses to give the information provided for in Article 47, shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 120. (repealed)

Art. 121. 1. In the case of condemnation for an act referred to in Article 115, 116, 117 or 118 or article 118¹, the court shall decide to confiscate the objects resulting from the infringement, even if they do not belong to the perpetrator thereof.

2. In the case of condemnation for an act referred to in Article 115, 116, 117 or 118, the court may decide to confiscate the objects that served for the commission of the infringement, even if they do not belong to the perpetrator thereof.

Art. 122. The acts referred to in Articles 116, paragraphs 1, 2 and 4, 117, paragraph 1, 118, paragraph 1, 118¹ and 119 shall be proceeded against on a complaint from the injured party.

Art. 122¹ In cases of crimes referred to in Articles 115-119 a competent organization for collective management of copyright and related rights is also deemed as sufferer.

Art. 123. The Minister of Justice may specify by ordinance the regional courts within the jurisdiction of a particular voivoide court that are competent to hear cases relating to the infringements referred to in Articles 115-119.

Very good questions

December 19th, 2008, Tomasz Rychlicki

Quis custodiet ipsos custodes? asked Juvenal in Satires, VI, 347. My friend Piotr Waglowski asks very important and more specific questions (in Polish language) regarding the operation of Warsaw’s CCTV systems. It all started when he received internal documents about bonuses that every employee receives when he observes and spot a crime. There are no bonuses for counteracting of such crimes. The director of Zakład Obsługi Systemu Monitoringu set rates for bonuses based on crimes that each employee spots. There is 15 points for crimes such as robbery, rape, fight and 3 points for an offence of “hooligans’ nature” such as damaging the property, 2 points for driving intoxicated, theft or appropriation of property of value below 250 PLN (it is an offence not a crime under the Polish law) and also 2 points for wanted persons and juvenile who are present on streets after 10 pm. There is also 1 point for “persons lying down” – which probably means drunk or homeless person.

Categories: criminal law | democracy | personal data | personal rights.

Thin line

December 7th, 2008, Tomasz Rychlicki

When copyright meets criminal law. Where art leads to jail. Nevertheless, I recommend…

See this movie on YouTube:

Categories: copyright law | criminal law.

Penalizing SQL injection techniques in Poland

October 6th, 2008, Tomasz Rychlicki

Polish criminal law has provisions, which in theory would serve to criminalize conducts related to “cracking” actions.

Chapter XXXIII. Crimes against protection of information
(…)
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.

Provisions of article 267 were used against Mateusz M. He was charged with use of methods known as SQL injection, in conjunction with Article 267 § 1. However, the District Court in Głogów VI Wydział Grodzki in a judgment of 11 August 2008, act signature VI K 849/07, found Mateusz M. not guilty.

The court held that the actions of the accused fail to comply with the statutory elements (…) Overcoming (breaching) security occurs when the offender destroys, removes the security, or when the impact on the security temporarily removes the protective function. (…) The person who gained access to sensitive information, but did not break any security measures will not bear the criminal responsibility.

I have to add that there are pending amendments to the Polish Criminal Code provisions regarding aforementioned regulations. Piotr Waglowski provides more details about this case. As regards legal issues on cracking I already wrote posts entitled “Who will be guilty?” and “Legal hacking“.

Nemo se ipsum accusare tenetur

August 20th, 2008, Tomasz Rychlicki

In Re Boucher, 2007 WL 4246473 (United States District Court for the District of Vermont, Nov. 29, 2007), PDF file. If you are not interested in the nuances of US law then the title of an article available at news.com website will tell you all about the issue of the aforementioned judgment.

Judge: Man can’t be forced to divulge encryption passphrase.

Couple of years ago I thought that such problem could be solved by simple sentence.

You have the right to remain silent and refuse to answer questions.

But Civil law lawyers will recall old Latin maxim nemo se ipsum accusare tenetur at once. The Polish Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments.

Art. 74. § 1. The defendant has no duty to prove his/her innocence or a duty to provide evidences for his/her disadvantage