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    Computer Crimes in Israel

    By Adv. Naomi Assia[1]
    The development in computer technologies has opened a wide range of opportunities for potential computer criminals. The easy and simple was one can access a computer, together with the major effect of computers at our lives, made the legislator to define criminal computer offenses in different levels of severity.
    The Israeli computers Act (1995) rules that any change, distortion or injuries of a computer software, access and permission deviation in using a computer, and presenting false output information, constitute criminal crimes, with penalty of up to 5 years imprisonment. 
    Computer Crimes
    Computer crimes were once defined as crimes done by intelligent and educated people using their brains and not their muscles[2]. One of the most significant properties of computer crimes is the ability to easily blur the tracks, in such a way that the criminal barely exposes himself to danger, and the chances to be caught are almost zero[3].
    We herby review the computer crimes as mentioned in the Israeli Computers Act: 
    1.      Distortion or intrusion to computer
    Section 2 to the Computers Act deals with unlawfully distortion or intrusion to computers. The purpose of this section is to defend the completeness of information and software.
    The term “unlawfully” passes the burden to the persecution that must prove: 1) that the action was done without the consent of the owner of the computer; 2) that the action was done illegally.
    The Israeli district court[4] has ruled that the right commentary for this section is that any deletion andor change of computer software or hardware is forbidden according to the law. There is no need to prove that the deletion caused damage.
    2.      False information or false output
    Section 3 to the Computers Act deals with the heart of computer crimes, and sets a 5 years imprisonment to whoever passes to another or store false information or false output; or uses software that causes false output. 
    This offense is meant to deal with frauds and stealing, and thereby expresses the deterrence direction of the law. 
    3.      Unlawful access to computers
    One of the most basic crimes is access to computers, as mentioned in section 4 to the Computers Act. Access to computers itself has been defined over the world as a crime, mainly due to the fact that the access itself is a crucial step in the way to many other computer crimes.
    Israeli courts have been dealing with the problem in defining the term “access”. The definition to this term, as mentioned in the Computers Act, is not sufficient, and there is no clear explanation to this term[5]. According to the Israeli court, the access itself is forbidden. In the “Analyzer” case[6], the Israeli court ruled that access to computers is very much like intrusion to a building.
    Moreover, unlawful access to computers constitutes a behavior offense, with no relevancy to the access’s consequences[7].
    In general, it is very hard to convict someone in the felony of unlawful access to computer, and therefore the advocacy might hesitate to file accusations in this subject. 
    4.      Access to computers in order to perform another crime
    Section 5 to the Computers Act rules that, whoever access a computer in order to perform another crime, will be sentence up to 5 years. This section was meant to emphasize the severity of the way the legislator see misuse of computer technology for criminal crimes.
    5.      Computer virus
    Section 6 rules that whoever edit software that can cause damage or distortion to computers, in order to unlawfully cause damage or distortion to computer will be sentenced up to 3 years. This section also rules that whoever passes to another or inserts to another computer software that can cause damage or distortion, as mentioned above, will be sentence up to 5 years. 
    This section was enacted due to the severe and wide damage that can be caused by computer viruses. Inserting the virus to another computer is a more sever crime that creating the virus itself. 
    The key to comment the above-mentioned felonies is by defining the term “unlawfully”. The courts have taken this term to refer to an unauthorized use, together with an element of recklessness as to the result of the action. Negligence action only does not answer the term[8].
    According to the secondary committee that dealt with the Computers Act, the intention of this term was to obligate the user to receive permission to perform the action. In case this action exceeded the permission, it will be considered as an action done unlawfully.  
    As already mentioned, the Israeli court has recently dealt with the severity of punishment need to be given, in order to deter computer criminals.
    Israeli court has ruled that[9]: “In a world where all knowledge and information is stored in computers, the first need is to protect the enormous databases stored in computers. Unless such protection is given, none of us could function... “
    Moreover, the intensiveness, the dashing, the increase of computer felonies around the world, the direct and indirect damages, the public interest and the growing importance of databases – force setting the bar of punishment much higher[10].
    However, the generality of the felonies, as defined in the Computers Act, can make regular and accepted behaviors prior to the Act, to be apparently considered as criminal felonies[11]
    In that matter, the writer of this article has suggested that in every place the term “unlawfully” exists, it should be written also “maliciously[12]. This is due to the fact that during the programming work there are many actions done recklessly, such as creating “bugs”, that are not done maliciously. 
    The Israeli Computers Act has failed to constitute as a codification of all computer laws, since it deals with computer crimes and evidences only[13]. The legislation has failed to grasp the most essential property of the computer, namely, as a means of communication[14].
    The Computers Act Proposal[15] has requested to set special punishment orders, in order to protect abstract interests, such as computer software. To our opinion, the subject of computer crimes is unique, and should be dealt in a special act.
    Apart of the penalty section, the Computers Act also deals with injuries, evidences and search laws.
    However, it seams that the definitions set in the Computers Act, which were determined over 10 years ago, are vague and do not fit to the internet and cellular age. Take for example the definition of a “computer reading language” (“expression method than is appropriate to conveyance, interpretation or processing by a computer or an auxiliary computer”), which is served as a component in the definition of “information” (“data, symbols, concepts or instructions, excluding software, expressed in computer reading language”). The term “information” itself is one of the two main components of “computer material” (“software or information”), which is a central element in the section of the law prohibiting unlawful access to computer material stored in the computer.
    Moreover, the separation between the term “information” and the term “software” is unnecessary. In the world in which every cellular phone can be used as a computer, there should be different and wider definitions.
    Therefore, we suggest that the Israeli Computers Act should be amended, in order to apply it to the cyber age. Moreover, the amendment should be accompanied by thickening the line of prosecuting and interrogation mechanism.
    In conclusion, the Computers Act should be consolidated with other laws, such as the Privacy Protection Act, the
          [1] The writer is a lawyer that specializes in the field of intellectual property in computer law. nassia@computer-law.co.il
    [2] Criminal Case 5476/03 The State of Israel v. Yossef Shay.
    [3] Judge Berliner at Criminal Appeal 71227/01 The State of Israel v. Ehud Tenenbaum. 5.6.2002
    [4] Criminal case 3813/99 The state of Israel v. Oded Rephaeli.
    [5] Judge Tenenbaum at Criminal Case 3047/03 The State of Israel v. Avi Mizrahi. 29.2.2004. See also Orin S. Kerr “Cybercrime’s scope: Intepreting “access” and “Autorizatio” in computer misuse statuter”. New York University Law Review (Novermber 2003) Vol. 78 No. 5 pp 1596-1668.
    [6] See footnote no. 3.
    [7] Criminal Case 40250/99 The State of Israel v. Mundir Badir. 8.8.1999
    [8] For example, actions done by an employee in his computer without authority, that causes damage will not be considered as a felony.
    [9] Judge Berliner, at CA 71227/01 State of Israel v. Ehud Tenenbaum.
    [10] Judge Hamer, heretofore.
    [11] In example, an employee who usese the computer at work for personal uses.
    [12] See protocol no. 3 from the meeting of the secondary committe to the Computers Act, from 14.2.1995.
    [13] According to the Computers Act Memorandum (crimes, software protection and evidences), 1987.
    [14] Haim Ravia, A White Elephant – The Israeli Computers Law: the first decade. March 2005
    [15] The Computers Act Proposal No,. 2278, 13.6.1994.