- I made computer virus to make a show of my programing skills and set it afloat. That was found out by Koujimachi Police Station of the Metropolitan Police Department. Then I was arrested and detained…
- I wrote a note saying that I planted a fake bomb on the SNS. I was requested to appear for voluntary questioning by the police…
1. Crime Related to Computer Virus (Article 168(2) and (3) of the Penal Code)
A person creates a program that gives an illegal command such as computer virus or get the program operational, which penally constitutes a crime related to a computer virus.
Electromagnetic records give an illegal command that a computer does not function in accordance with someone’s intention or functions contrary to his/her intention when he/she uses the computer, or records that describe illegal command are sanctionable.
A) Creating Computer Virus (Article 168(2)(1) of the Penal Code)
A person who created or provided computer virus or virus program, for the purpose of operating them in someone’s computer, without justifiable grounds, shall be punished by imprisonment with work for note more than three years or a fine not exceeding 500,000 yen.
While the computer virus varies, the subject of the crime is not only that in a form of paralyzing in other programs, building a replica of itself, and passing it to them, but also generally so-called Trojan Horse or Spyware. It does not matter whether a user did something to operate computer virus such as clicking an icon.
B) Putting into Use of Computer Virus (Article 168(2)(2) of the Penal Code)
A person who put a computer virus or virus program operational independently of a user’s intention without justifiable grounds shall be punished by imprisonment with work for not more than three years or a fine of not exceeding 500,000 yen.
It is necessary to put a computer virus or virus program operational independently of a user’s intention to establish the crime of putting into use. Therefore, when a user recognized the virus, the crime cannot be established.
C) Obtaining Computer Virus (Article 168(3) of the Penal Code)
A person who obtains or store a computer virus or virus program with the purpose of putting it operational independently of a user’s intention, without justifiable grounds, shall be punished by imprisonment with work for not more than two years or a fine of not exceeding 300,000 yen.
Obtain means any actions to bring a computer virus or virus program under one’s control acknowledging that it is a computer virus or virus program. For example, obtainment includes an act to receive records media that a virus program is recorded such as CD-Rs or paper in which source code of virus program is printed.
Store indicates keeping a computer virus or virus program under one’s control. The act to save a computer virus or virus program on one’s own hard disk or on the server which he/she him/herself runs falls under the category of storage.
2. Prohibition of Unauthorized Access (Article 11 of the Act on Prohibition of Unauthorized Access)
The Act on Prohibition of Unauthorized Access prohibits unauthorized access and provides for penal provisions on violation conducts.
A) Prohibition of Acts of Unauthorized Access (Article 11 of Act on Prohibition of Unauthorized Access)
A person who engaged in an act of unauthorized access that is prohibited under article 11 of the Act shall be punished by imprisonment with work for not more than three years or a fine of not more than 1,000,000 yen.
Acts of unauthorized access include as follow:
- Make use of someone’s identification code in a different way (Article 2(4)(ⅰ) of the Act) This provision prohibits the act that an unauthorized person uses a computer by misuse someone’s identification code.
It thinks primarily of unauthorized log-in with someone’s ID or password. - Exploit defects of computer program (Article 2(4)(ⅱ) and (ⅲ))
This provision prohibits the act that breaks in a system making use of defects in access control program or flaw in safety measures such as an administrator’s mistake in set-up, so-called security hall.
B) Prohibition of Acts of Obtaining Someone Else’s Identification Code (Article 4 and 12(1) of the Act)
The Act prohibits acts of obtaining someone else’s identification code for the purpose of engaging in an act of unauthorized computer access. A person who violated it shall be punished by imprisonment with work for not more than one year or a fine of not more than 500,000 yen.
The purpose of engaging in an act of unauthorized computer access includes not only an intent of an acquirer to access unauthorizedly with someone else’s identification code by him/herself but also an intent of an acquirer to offer someone else’s identification code to a third person while acknowledging that the third person will gain unauthorized access with the code.
Obtaining means an act to bring an identification code under one’s control. It includes an act to memorize an identification code in a reproducible way.
▼Summary of Violation of Act on Prohibition of Unauthorized Access
| Act that may constitute a crime | Punishment/Statutory Penalty | |
| Acts of Unauthorized Computer Access | Make use of someone’s identification code in a different way |
Imprisonment with work for not more than three years or a fine of not more than 1,000,000 yen. |
| Exploit defects of computer program | ||
| Acts of Obtaining Someone Else’s Identification Code | Imprisonment with work for not more than one year or a fine of not more than 500,000 yen. | |
| Acts of Facilitating Unauthorized Computer Access | ||
| Acts of Wrongfully Storing Someone Else’s Identification Code | ||
|
Acts of Illicitly Requesting the Input of Identification Code(Fishing) |
||
Defamation (Article 230 of the Penal Code)
A person who defames another by alleging facts in public shall be punished by imprisonment with or without work for not more than three years or a fine of not more than 500,000 yen.
The content of write on the Internet could be punishable as defamation. While various SNSs are used extensively such as Facebook, LINE, Twitter, or other telephone call and chat applications, the content of write that you wrote in light manner could fall under defamation.
Obstruction of Business (Article 233 and 234 of the Penal Code)
A person who damages the credit or obstructs the business of another by spreading false rumors or by the use of fraudulent or by force means shall be punished by imprisonment with work for not more than 3 years or a fine of not more than 500,000 yen.
Intimidation against a particular person on the Internet and false notice of commission of a crime could constitute crime of obstruction of business.
~Defense Activities in Cyber Crimes~
1. Activities Aiming at Decision Not to Prosecute or Acquittal
Cybercriminals commonly apply complex and technical online knowledge to commit a cyber crime. So, cybercriminals may be committing a cyber crime through your computer while you are unaware to what is going on. Although the investigative authorities keep close check on cyber crimes by its special teams, it is also true that the methods of committing a cyber crime is growing in sophistication year by year.
If one faces criminal investigation into a charge that he/she knows nothing about or got arrested, a lawyer will assert that the suspect is innocence based on objective evidence. The lawyer also aims at gaining the decision not to prosecute or acquittal by giving proper advices on how to deal with interrogations to prevent a false confession to be made or showing evidences that prove that the evidence by the investigative authorities is not sufficient to prosecute him/her or that pointing that the suspect is not a perpetrator.
2. Early Release
Because almost always some action through computer becomes problem as a cyber crime, highly professional knowledge is required, and one could argue that a cyber crime is easy to destroy or conceal evidence. Thereby, it is understandable that the suspect in cyber crime case tends to get arrested and detained concerned with the risk of destruction of evidence.
Early consultation with a lawyer enables the lawyer to urge the investigative authorities to investigate without physical restraint such as arrest and detention or to stop detention followed by arrest.
3. Pay the Damage and Settlement Negotiation
It can imagine that in many cyber crime cases there are victims. In such case, a lawyer carries out the defense activities aiming at the decision not to prosecute or reduction of punishment by apologizing to the victim and negotiating with him/her to settle the case out of court.
For example, in a case that defamation over the Internet is at issue, if the out-of-court settlement with the victim was made and he/she dropped the victim’s report, it is possible to gain the decision not to prosecute the suspect by the public prosecutor.
Please give apologizing and negotiation over the lawyer as professional negotiator. That the suspect personally discuss with the victim may make the parties get emotional in many cases, and the negotiation itself gets nowhere. The out-fo-court settlement, depending the gravity of a case, increases the potential of leading to the decision not to prosecute or suspended sentence.
You can receive the best advice from the lawyers of the AICHI Criminal Cases Law Firm who have rich experience in cyber crimes.
Our lawyers specializing in criminal and juvenile cases personally provide with the “free consultation”. We also provide for “the first interview service” which our lawyers go to the detention facilities where the suspect is detained to have an interview, at the shortest on the day.
