Is Computer Hacking a Crime in Argentina?

1. Introduction

On March 20, 2002 Federal Judge on Criminal and Correctional Matters, Sergio Torres dismissed the case of a group of hackers who had defaced the web site of Argentina’s Supreme Court .

This case had wide repercussions in the press during the month of April this year as it suggested that computer hacking is not a crime in the Republic of Argentina .

Before giving our opinion on the judge’s ruling, we should analyze the facts of the case, the grounds motivating the judge’s decision, the opinions of legal scholars on analogous matters and some case laws.

2. The Case

Facts - A group of people replaced the front page of the Supreme Court’s web site with another referring to the highly publicized case of the murder of journalist José Luis Cabezas.

There was an extensive investigation to prove what happened and to find those responsible. The Government’s Secretary of Intelligence, the Department of Crime Analysis and the Information Technology Division of the Federal Police all participated.

The hackers were traced by the messages they left on ICQ and with the media that they called to inform of their actions. As soon as they had been identified, they were charged with the crime of damage.

However, the judge resolved that the conduct of the accused parties was not covered by the crimes set forth in sections 183 and 184, paragraph 5 of the Criminal Code.

Section 183 of the Criminal Code punishes with the penalty of imprisonment from 15 days to one year any person “destroying, ruining, making disappear or in any other way damaging movable material objects or animals, total o partially belonging to third parties”, while section 184, paragraph 5 provides for an aggravation of the crime of damage, setting forth that the punishment will be from 3 months to 4 years imprisonment in the event of damages to “... files, records, libraries, museums or to bridges, roads, drives or other properties of public use ...”.

Grounds - To reach such a decision, the judge understood that the web site could not be considered a “material object” as such term is defined by the Civil Code .

In that respect, he sustained that “... a web site cannot be classified as a material object, as by its nature it is not a corporeal object and cannot be physically detected”.

He also added that “... an extensive interpretation of the concept of material object, so as to include web sites, would imply a clear impairment of the legality principle set forth in section 18 of the National Constitution”.

He sustained that the legal void on the matter prevents the conduct of the accused parties from being considered a crime, and he therefore resolved to acquit them.

The decision was not appealed by the intervening prosecutor, who had promoted the investigation in the first place, and the ruling is therefore final.

As the prosecutor did not appeal, the Supreme Court resolved to forward a copy of the record to the Office of the Attorney general, on which all prosecutors depend, “for the purposes it deems proper”. It also expressed its concern with the “seriousness of the situation” and requested the Ministry of Justice to propose the necessary legislation to criminally punish this kind of conduct, as the lack of an express legal framework led the case to conclude in a manner detrimental to the administration of Justice / .

3. Historical Precedents

The resolution of the case under analysis has a negative impact on the protection of the right to property.

Today the value of intangible assets, such as software, information, data, trade secrets, among many others, is undeniable.

In the past, the necessity of protecting the right to property led many criminal courts to consider acts committed in connection with certain assets as punishables even in cases in which it was questionable whether such assets were material objects.

a) We can refer to case law prior to the amendment of section 2311 of the Civil Code introduced by Law No. 17,711, which considered that provisions relating to material objects were applicable to energy . After this amendment, energy was expressly included in the definition of “material object” .

But case law has gone beyond that in the extensive interpretation of the concept of “material object”.

b) In the “Iglesias” case, the Court of Appeals on Criminal Matters sustained that an individual altering bank account registers, transferring “money” to its own account commits the crime of theft . The court understood that the conduct of the defendant constituted the crime of theft (section 162 of the Criminal Code), as “the appropriation is made directly by the accused, using the computer system”.

c) Regarding the appropriation of television signals, case law has accepted that television images imply an energy which, as such, is capable of having value, and appropriating said images by means of an illicit connection can be qualified as the crime of theft .

d) In this connection, but in respect to the protection of privacy, criminal judges put e-mail on the same footing as private correspondence in at least two cases, although it is not expressly mentioned in sections 153 to 155 of the Criminal Code.

e) In the “Dufau v. Lanata” case, for example, the journalist was reproached for having unlawfully appropriated correspondence – an e-mail –then publishing it when it had not been intended for that purpose. The lower court judge sustained that e-mail was not contemplated in the Criminal Code. However, Room VI of the Criminal Chamber revoked this aspect of the decision and sustained that “... there is no material object against defining the electronic means of communication as an updated version of mail” .

There were also the following two cases where the damages assets were not regarded as “material objects”.

The first was resolved by the Court of Appeals on Criminal and Correctional Matters of the City of Buenos Aires, Room VI, captioned: “Pinamonti, Orlando M.”, of April 30, 1993. The ruling sustained that even if software is an intellectual work protected by Law No. 11,723, its disappearance or destruction is not included in the conduct punished by such law, as it is a non typical conduct. It added that “this occurs because, as it is not classified as a material object – only the support would be a material object - it is not included in the definition set forth in section 183 of the Criminal Code ...”

Several authors, including Pablo A. Palazzi and Marcelo A. Riquert, have criticized this ruling .

The second case, captioned: “Autodesk Inc” is about a Supreme Court decision, which confirmed that the reproduction of a computer program not authorized by its author is not the crime defined in section 72, paragraph (a) of Law No. 11,723. It was understood that by virtue of the legal principle set forth in section 18 of the National Constitution, the punishability of a certain conduct “requires” the double precision of law and the punishment to be applied.

This ruling generated strong criticisms because many people understood that it meant that software hacking was legal in Argentina.

The impact of this case led to the enactment, one year later, of Law No. 25,036, whereby software was expressly included as protected intellectual work in the terms of the intellectual property law.

4. Criticisms of the Ruling

Judge´ Sergio Torres correctly considered that, from the point of view of substantial law, the accused parties’ conduct of defacing an Internet web site should be covered by the legal definition of the crime set forth in section 183 of the Criminal Code or, possibly, in the aggravating circumstance described in section 184, paragraph 5 of the Criminal Code.

Furthermore, the judge understood that the accused parties’ conduct of defacing the Supreme Court’s web site, implied an attack on the tangible aspects of such web site.

Finally, the judge based his decision on the fact that Internet web sites are not “material objects” in the sense of Section 2311 of the Civil Code and therefore may not be subject to the damage crime set forth in section 183 of the Civil Code.

The judge supported his decision mainly sustaining that: 1) an extensive interpretation of the concept of “material object” breaches the principle of legality set forth in section 18 of the National Constitution, and; 2) there is a legal void in computer crime.

We would add that the case presented an additional difficulty as the concrete economic damage caused by altering the website was difficult to assess.

Furthermore, although the mere act of breaking into a computer system via Internet without the owner’s authorization is an intrusion of privacy, it is not a crime contemplated under the legal rules in force .

In spite of the judge’s arguments and our own, we understand that a restrictive interpretation of the concept of “material object” is not adequate today.

By saying this, we do not intend to violate the principle of legality by means of the analogous application of existing crimes to situations not contemplated in the Criminal Code since, in this case, the matter was restricted, in our opinion, to interpreting the concept of “material object” – which is set forth in section 183 of the Criminal Code – as the subject matter of the crime of damage.

We understand that a wider interpretation of the concept of “material object” is possible on the following basis:

a) The Criminal Code was drafted in 1921, when television, computers and of course, Internet had not been invented, and when the economic value of intangible assets was not fully appreciated.

b) As mentioned above, case law has given the quality of “material object” to elements such as energy, telephone pulses and television signals, of doubtful tangibility.

In view of the value that information has at present, the violation of secrets and correspondence is typified in the Criminal Code and the violation of trade secrets is regulated by the Confidentiality Law .

c) Some authors understand that the information stored in a computer adopts the form of energy. This may be electric energy if the support is the computer memory, or magnetic energy if the support is a server, a hardisk or a floppy disk.

Therefore, considering that the reformed Civil Code sets forth that provisions referring to “material objects” are applicable to energy, it is possible to conclude that the information stored in a computer, whether in its hard disk or in its memory, would qualify as a “material object” and therefore be subject to the same provisions.

d) Another possibility would be not to consider the damage to the object, but to consider the damage to the “function” of the “material object” destroyed as well as to its economic value. This means that if we consider the contents as the main material object, because it has a greater economic value, and the support (the server) as an accessory, because it has a lesser value - and we all agree that to destroy a material object on the terms of section 183 of the Criminal Code means to reduce its economic value -, the action of destroying or defacing a web site, software, relevant data, etc., causes an effective harm, which would be contemplated in such section .

We must clarify that there are no interpretative doubts in respect of the concept of material object when by means of a virus or in any other way there is damage to the support (for e.g., the server), as it is a movable material object.

e) In connection with the infringement of intellectual property rights and in support of the tangibility of websites, we may argue that even though same are not expressly included in the list of intellectual works protected by Intellectual Property Law No. 11,723, the Argentine Copyright Office accepts their deposit as such. This means that a web site registered with this entity is deemed an “intellectual work”, unless proven otherwise. In this sense, we must remember that for an intellectual work to be eligible for protection under Intellectual Property Law No. 11,723, it must have a “certain degree of tangibility”.

Conclusion

Although we respect the opinion of the Judge, we understand that the considerations made by him to arrive at the conclusion that a web site cannot be considered a material object and that it cannot be the subject matter of the crime of damage, are erroneous.

It is clear that a legislative reform taking into account technological advances, especially information technology advances, would solve any doubt in that respect, but in our opinion it is possible to apply the rules of the Criminal Code without breaching the principle of legality.

Criminal judges may apply the crime of damage to hackers just by making a wide interpretation of the concept of “material object”, and giving that quality to Internet web sites also.

The wide interpretation of the concept of “material object” is fully justified in the times we are living, where intangible goods have acquired substantial value as property and must therefore be protected.

This position is not new. As we explained above, it has been adopted by Criminal Justice in cases where the interpretation of the concept of “material object” was of doubtful justification and, therefore, there are no reasons not to apply the same criterion in the case of web sites.

We therefore believe that a hacker who unlawfully breaks into a computer system and erases, destroys, defaces or changes data, information, images, software, etc. commits the crime defined in section 183 of the Criminal Code.

The right to property set forth in the National Constitution and the basis of the liberal system calls for all judges to protect it. While it is true that through civil proceedings those who have been damaged by a hacker’s injurious actions may be compensated (unless he/she is an insolvent person), criminal action may be more effective for purposes of preventing or punishing these fraudulent acts. Furthermore, it is convenient for the holder of a right to have as many actions as possible against unscrupulous third parties who benefit from the property of others, or worse, enjoy destroying it.

The debate is by no means finished, and until a legislative reform is adopted, it is Criminal Justice and, finally, the Argentine Supreme Court, that will have the last word on this matter.