Cybercrime and the U.S. Criminal Justice System

Susan W. Brenner, University of Dayton School of Law

Introduction

Differences from Civil Justice System

Basic Institutional Structure

Prosecutor

Defense Attorney

Adjudication

Basic Defenses

Hack Back Defense

Evidentiary Issues

Sentencing

Relationship between State and Federal Criminal Justice Systems

Criminal Justice System and Cybercrime

Federal Cybercrime Law

State Cybercrime Law

Defenses

Other Problematic Areas

Conclusion

Glossary

Cross References

References

INTRODUCTION

Cybercrime, which is essentially the use of computer technology in the commission of criminal activity, presents many challenges for the U.S. legal system. On the one hand, state and federal law adequately criminalizes most of the basic cybercrime offenses; on the other hand, there is substantial disagreement as to the penalties that are appropriate for those who commit these offenses. The disagreement over penalties is exacerbated by the fact that many offenders are juveniles; the federal system, especially, is not equipped to deal with juveniles. Charging decisions can be difficult because it is not easy to parse cybercrime into offenses: Is the dissemination of a virus that damages a million computers one crime or a million crimes? As is explained below, these are only a few of the ways in which cybercrime challenges the basic assumptions that structured traditional criminal law.

DIFFERENCES FROM CIVIL JUSTICE SYSTEM

The criminal justice system in the United ...

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