Kara Sears
Computer viruses are not illegal in most jurisdictions, but creating or distributing one without authorisation can be. This is because the law focuses on the concept of unauthorised access rather than the popular and fluid concept of a computer virus. If a user authorises a company to access their computer, this is not considered a crime. However, if a user unknowingly installs a program that records their screen, the person who installed the program has committed a crime, not the software.
| Characteristics | Values |
|---|---|
| Unauthorized access | Illegal |
| Malicious behaviour | Illegal |
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What You'll Learn
'Hacking back' laws
Computer viruses are illegal in most jurisdictions, and creating or distributing them is a crime. However, there is no specific law that prohibits the creation or distribution of computer viruses. Instead, the legality of such actions falls under the umbrella of "unauthorized access", which is prohibited by federal and state laws.
The concept of "without authorization" is key to understanding the legality of computer viruses. If a user authorises a company to access their computer, such as for reporting purposes, it is not considered unauthorised access. However, many users are unaware that they have granted software publishers access to their computers, which can technically violate the law.
The discussion around "hack back" laws is relevant to the creation and distribution of computer viruses. While "hacking back" is generally considered a crime, these laws often do not address malicious behaviour. For example, the Computer Fraud and Abuse Act (CFAA) lacks provisions to protect individuals who hack back in self-defence. As a result, if one party commits a crime and the other party retaliates with a crime, both parties can be prosecuted for their respective offences.
It is important to note that the legal implications of computer viruses can be complex, and the specific laws and interpretations may vary across different jurisdictions.
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Privacy laws
Computer viruses can violate privacy laws, particularly if they involve "unauthorised access" to another person's computer. The concept of "harm" is irrelevant to computer-crime criminal law. In most jurisdictions, creating a computer virus is not illegal, but "hacking back" is a crime.
The specific privacy laws that apply can vary depending on the jurisdiction, but there are often both federal and state laws in place to protect individuals' privacy. For example, in the United States, there are federal laws such as the Computer Fraud and Abuse Act (CFAA) and state laws that prohibit unauthorised access to computers and networks.
It's important to note that the legality of computer viruses can be complex and may depend on the specific circumstances and actions involved. While creating or distributing a virus may not be explicitly illegal in some jurisdictions, using a virus to access or collect data without authorisation is likely to violate privacy laws.
Additionally, the impact of a computer virus can extend beyond privacy concerns. Viruses can cause significant damage to computer systems, networks, and data, which may result in financial losses, disruption to operations, and other negative consequences. In such cases, the creators of computer viruses may be held liable for the damages caused, regardless of whether they intended to cause harm.
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Federal and state laws
In most jurisdictions, creating a computer virus is not illegal. However, there are federal and state laws against unauthorised access to computers. The term "unauthorised access" is key here, as it is what constitutes a crime. If a user authorises a company to access their computer, this is not considered a crime. However, many users are unaware that they have granted software publishers access to their computers. The concept of "harm" is also irrelevant to computer-crime criminal law.
Federal laws against unauthorised access include the Computer Fraud and Abuse Act (CFAA), which prohibits accessing a protected computer without authorisation. A "protected computer" includes computers used in or affecting interstate or foreign commerce or communication. This term is widely used in federal law and can be applied to various situations, such as prohibiting growing feed for your own animals.
State laws on unauthorised access vary, but all states have laws against it. These laws can be found on various websites, which provide detailed legal analyses of the topic.
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'Clean Hands' doctrine
The creation and distribution of computer viruses are not explicitly illegal. However, the creators of computer viruses may break privacy laws if they access personal information without permission. This is considered "unauthorised access", which is illegal under federal and state laws.
The "Clean Hands" doctrine is a legal principle that applies in civil matters. It states that if a person has done something wrong and has been wronged as a result, they cannot seek a remedy from the courts. In other words, if you have "dirty hands", you cannot expect the courts to help you. This doctrine may come into play if a person commits a crime by creating or distributing a computer virus and is then wronged by another party. Both parties can be prosecuted for their respective crimes, but the original wrongdoer may not be able to seek legal recourse due to the Clean Hands doctrine.
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'Unauthorized access' laws
There is no law against creating or distributing a computer virus. However, the creation and distribution of a virus may break 'unauthorised access laws'. These laws are stated in terms of 'clear concepts' such as 'unauthorised access'. There are federal and state laws against unauthorised access. For example, in the US, federal law prohibits unauthorised access to 'protected computers', which includes 'computers used in or affecting interstate or foreign commerce or communication'.
Unauthorised access laws are designed to protect individuals' privacy. For example, installing a program on someone's computer without their knowledge is illegal, even if the program does not cause any harm. The concept of 'harm' is irrelevant to computer-crime criminal law. Therefore, even if a virus does not cause any damage, the act of accessing someone's computer without authorisation is still illegal.
In most jurisdictions, 'hacking back' is a crime. This means that if someone commits a crime against you, you cannot commit a crime against them in retaliation. Both parties can be prosecuted for their crimes. However, there is some discussion about 'hack back' laws, and these laws generally stop short of malicious behaviour.
It is important to note that the legal definition of a computer virus may differ from the technical definition used by programmers. The question of whether something is a virus or something else is not a legal question. Therefore, the focus of unauthorised access laws is on the act of accessing a computer without authorisation, rather than the specific type of software used.
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Frequently asked questions
In most jurisdictions, no. However, there are federal and state laws against "unauthorised access".
This will depend on the jurisdiction in which the crime is committed.
A binary, when run, performs an action like deleting data.
This may break privacy laws, but it depends on the details. For example, did you get the user's permission, and what data were you collecting?
