This might seem like a simple question, but it is actually a fairly common question. Some persons define cybercrime broadly to include any crime committed using a digital device. The more common question I receive is whether the broad range of new devices, like tablets and smart phones, are included within the current legal framework.
Nothing is more fundamental than understanding the types of devices that are included in current U.S. cybercrime laws. The U.S. Federal Criminal Code defines certain activities using a “computer” as unlawful. These activities include unauthorized access (hacking), sending large quantities of unwanted email (spam) and releasing malicious code such as viruses that are intended to harm computer systems. The U.S. law is fairly comprehensive, but the confusion occurs when determining whether an Internet connected device like a smart phone is included in the definition of “computer” in the criminal code. Is a cybercriminal safe from prosecution if he uses only his smart phone to release a virus because he is using a phone and not a “computer”?
Section 18 of the U.S. Code defines a “computer” as “an electronic, magnetic, optical, electromechanical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable handheld calculator, or other similar device”. This broad definition of “computer” has been interpreted by courts to include nearly any electronic device that is not specifically excluded by the statute.
As an example, of courts broad interpretation of the term “computer”, in the 2005 Wisconsin case of U.S. v. Mitra, a Defendant used radio hardware and other equipment to take control of a city's radio system for emergency communications. The defendant, Mitra, argued that because the U.S. Congress did not include his unique digital system and signal disruption scheme in the definition of “computer” in the U.S. code. Accordingly, Mitra argued, his actions should not be considered a crime.
The federal appeals court reviewing Mitra’s conviction, however, disagreed with his argument. In denying Mitra’s argument for narrow application of the term “computer”, the court stated that “electronics and communications change rapidly, while each legislator's imagination is limited. That's why they write general statutes rather than enacting a list of particular forbidden acts. And it is the statutes they enacted--not the thoughts they did or didn't have--that courts must apply.”
Technology continues to evolve and change, however, this should not be a shield behind which a cybercriminal can hide from responsibility. It seems clear under current U.S. law that most new automated digital devices are included within the scope of the term “computer” in the U.S. Criminal Code.