Signs of digital crime: Legal issues

Signs of digital crime: Legal issues

Cite as: AIP Conference Proceedings 2701, 020034 (2023); https://doi.org/10.1063/5.0130209
Published Online: 09 March 2023
Ildar Rustamovich Begishev, Diana Davletovna Bersei, Marina Pavlovna Peryakina, et al.

Signs of Digital Crime: Legal Issues

Ildar Rustamovich Begishev ${ }^{1, a)}$, Diana Davletovna Bersei ${ }^{2, b)}$, Marina Pavlovna
Peryakina ${ }^{2, \mathrm{c})}$, Ruslan Mikhailovich Zhirov ${ }^{3, \mathrm{~d})}$, Vitaly Viktorovich Kovyazin ${ }^{4, \mathrm{e})}$,
Yulia Radikovna Gerasimova ${ }^{5, f}$, Albert Sergeevich Arshinov ${ }^{6, g)}$, Liliya Viktorovna
Ryabova ${ }^{7, h)}$
${ }^{1}$ Kazan Innovative University named after V.G. Timiryasov, Kazan, Russia
${ }^{2}$ Branch of the Plekhanov Russian University of Economics in Pyatigorsk, Pyatigorsk, Russia
${ }^{3}$ Kabardino-Balkarian State University named after H.M. Berbekov, Nal’chik, Russia
${ }^{4}$ North Caucasus State Academy, Cherkessk, Russia
${ }^{5}$ Irkutsk National Research Technical University, Irkutsk, Russia
${ }^{6}$ Stavropol branch «MIREA - Russian Technological University», Stavropol, Russia
${ }^{7}$ North-Caucasus Federal University, Stavropol, Russia
${ }^{a}$ begishev@mail.ru
${ }^{\text {b) }}$ di.bersej2012@yandex.ru
${ }^{c}$ Corresponding author: kaf.upp@yandex.ru
${ }^{d}$ dzhir-ruslan@mail.ru
${ }^{c}$ kovyazinu.2019@mail.ru
${ }^{f}$ avtos5630@mail.ru
${ }^{g}$ arshinov_albert@list.ru
${ }^{\text {h) }}$ liliya.ryabova.63@mail.ru

Abstract

The paper examines the nature of digital crime and determines its signs. The main feature of the considered illegal act is the subject of encroachment, which shall be expressed in the form of information (messages, data) circulating in information and telecommunication devices, their systems and networks; it is the illegal, culpable influence on it that shall determine the harm caused to public relations. Wherein, the nature of such information can be different; this information can act as that social value about which certain legal relationships have developed or be a means of their implementation - these circumstances are indifferent for classifying acts as crimes in the field of digital information circulation.

INTRODUCTION

Modern social relations are characterized by an increase in the number of new spheres. Development of social practices is invariably accompanied by their multiplication and complication. Achievements of scientific and process progress, being introduced into the practical aspects of the life of citizens, somewhat change the nature and structure of social relations, including legal relations.

The main driver of modern society is the achievements of the information and telecommunications sector [1]. Information, while being encoded into a digital sequence of symbols and transmitted by means of electromagnetic signals, has become not only a means, but also an object of public relations. Moreover, having organically integrated into existing ones and partially formed new ones, digital information has become a constitutive component of modern social relations.

Currently, most legitimate needs can be satisfied either completely through use of computer technology, or with their active use [2]. The said patterns determined the shift of many types of social relations from the real world to the digital space [3]: for example, the circulation of funds in the overwhelming majority of cases has acquired an electronic character; the communication processes of individuals, including those on implementation of property and liability rights, have shifted to the field of digital information, and etc.

Development of information and telecommunication systems has significantly changed human life. Expansion of the spheres of application of complexes of mobile and satellite communications, the information and telecommunication network Internet, the emergence of new information technologies, as well as other forms of telecommunications have significantly increased the role of digital information [4], and ensuring cyber security. Indeed, penetration of digital devices, their systems and networks into public relations has acquired a global character: at present, a significant part of communication activity, financial turnover, circulation of confidential information occurs in information and telecommunication networks [5], moreover, they are used in objects of critical information infrastructure of the Russian Federation, automated control systems are also based on the circulation of digital information, which additionally confirms its special significance. Digitalization has made significant changes in the sphere of civil law turnover - digital rights have become an objective reality, entailing changes in state policy in the field of normative regulation of virtual economic relations.

MATERIALS AND METHODS

The materials for the paper were the provisions of the domestic criminal legislation on responsibility for committing a crime in the field of computer information.

The reliability of the results obtained is ensured on the basis of an analysis of a significant and necessary array of legislative regulations, special literature, statistical data, as well as use of modern methods of studying the legal institutions: logical, formal legal, comparative jurisprudence, systemic-structural and other methods of scientific knowledge.

RESULTS

Progress in the field of information technology entails regular changes in criminal activity, the emergence of new types of acts that pose a public danger, the complication of forms and methods of committing crimes, an increase in opportunities for creating organized groups, the distribution of roles and the direction of criminal activity. The fact that digital information is not limited in circulation by state borders, and computer attacks can be carried out from a significant distance from the attacked information object, creates wide opportunities for committing crimes in the field of circulation of digital information from the territory of foreign states.

A new Allianz report says that cybercrime costs the world $\$ 465$ billion a year — roughly the GDP of Norway. More than half are in the top 10 economies, but Australia’s $\$ 1.5$ trillion GDP still costs more than $\$ 1$ billion a year.

A completely natural consequence of the above is an increase in the number of crimes in the field of digital information circulation. It was hardly possible to assume that the shift in social relations to the digital area would not affect the structure of crime. Thus, according to current data, $33.7 \%$ more crimes were committed in the territory of the Russian Federation that infringe on public relations that have developed with regard to digital information, or are carried out with its use. Arguing about criminal acts of this type, attention shall be paid to the fact that the trend towards their increase is stable and increasing: in the first quarter of 2021, 135,780 digital crimes were registered in Russia, at the same time, 510,396 illegal acts of this category were committed in 2020, while in 2019 this statistical indicator amounted to 294,409 crimes, and in 2018 there were 174,674 criminal events (according to the Ministry of Internal Affairs of Russia).

We see reasonable and consistent reasoning of specialists who note that illegal access to digital information can cause significant harm to its rightholders, violate their constitutionally guaranteed rights, eliminate the possibility of legitimate implementation of their legitimate interests [6].

Information (messages, data) presented in the form of a digital record and transmitted via electromagnetic or fiber-optic communication lines in the references and practice are named differently.

According to Note 1 to Article 272 of the Criminal Code of the Russian Federation, which contains a partially identical concept of “computer information” that means the information (messages, data) provided in the form of electrical signals, regardless of the means of their storage, processing and transmission. Let us justly denote that

introduction of this note is an actual, consistent and well-grounded decision of the legislator. Indeed, for the rule application effectiveness, considering the widest range of computer technology operating on the basis of information encoded in a digital sequence of characters, the feature characterizing the subject of this composition needed to be detailed. An important feature of the definition under consideration is an indication of the electrical nature of the signal through which information is propagated. Formally, such a description does not seem to be entirely comprehensive and sufficient, since digital information is digital sequential, but in appearance it changes depending on the distribution medium - the communication line and the information transmission channel [4]. In the foreign references, there are informational messages about the methods of transmitting information by means of light signals [7], which somewhat de-actualizes the above legislative definition.

In the scientific references, various interpretations of this definition are offered. So, M.V. Starichkov suggests that computer information shall be understood as “information recorded on a material medium provided in a form suitable for processing using computer devices, and intended for use at such
devices” [8]. On the whole, we find this term satisfactory, but we find it possible to express some considerations. Firstly, digital information is inextricably linked with a material medium, it can be separated from it only at the moment of its transmission, however, the time limit of this process is limited, which does not allow identifying the channels through which such information is transmitted as an independent medium. It shall be further clarified that even if certain information is found on cloud media, it is still associated with the technical means used by the administrators of the resource where such information is stored. In this regard, the indication to the carrier of information seems to us redundant. Secondly, the analyzed definition uses, in our opinion, an insufficiently defined term “computer devices”, which has not received further concretization. The computational capabilities of modern processors eliminate the need to place them in bulky structures, while maintaining a high potential for storing, processing and transmitting the digital information. It seems obvious that the microprocessor power of some modern digital devices is comparable to computers, in the traditional sense of the latter term.

In the said context, the arguments of P.G. Smagin, who points out that “if information was created not on a computer, but, for example, on a digital camera, then it is no longer computer, but it is still recorded in digital form and when it is transferred to a computer, no distortion will occur” [9].

It seems that the formulation of an exhaustive definition of digital information by indicating its physical characteristics (form of presentation, channels and communication lines, transmission signals) cannot be initially recognized as a successful method. These circumstances are dynamically changing in accordance with emergence of new, highly promising technological and technical solutions, which makes it hardly possible to design on their basis a stable definition that retains relevance and descriptive ability over a long period of time. Digital information shall be understood as “information (messages, data) circulating in information and telecommunication devices, their systems and networks” [4]. We believe that this definition describes fully all the essential, distinctive features of digital information. We shall give the pertinent indication that devices are not the only species, where such information circulates. Information and telecommunication systems and networks in their properties and technical characteristics have certain differences from digital devices, so, for example, the technical means used to ensure their operation must a priori have increased performance, capable of supporting the stable operation of the system with increased traffic. There are no such requirements for digital devices for personal use. We take this definition as the basis for further reasoning.

Introduction of certainty regarding the exhaustive features of digital information was necessary insofar as it acts as an invariable subject of encroachment, the unlawful influence on it is mediated by the culpable infliction of harm on social relations protected by criminal law. In the context of reasoning, whether digital information indifferently acts as an object about which certain social relations have developed (for example, information recorded in the form of digital information represents a personal secret), or acts as a means of implementing public relations that have developed about another object (in situations where the digital protection system of a mobile application is neutralized, as a result of which illegal access to financial assets is provided). The main unifying features of a crime in the field of digital information circulation is the described object of encroachment, performing, among other things, a differentiating function, making it possible to distinguish acts of this type from other forms of illegal behavior.

DISCUSSION

We believe it is possible to note that crimes in the field of digital information circulation are not limited to acts provided for in Chapter 28 of the Criminal Code of the Russian Federation, and represent a much broader category.

So, for example, in Article 159.6 “Fraud in the Field of Computer Information” of the Criminal Code of the Russian Federation, according to the interpretation given by judicial practice, a method of committing a crime is understood as the purposeful impact of software and (or) software and hardware on computer equipment as a result of which a violation of the established process of storing, processing and transferring digital information occurs, which allows the guilty person to illegally take possession of someone else’s property or acquire the right to it (Resolution of the Plenum of the Supreme Court of the Russian Federation of November 30, 2017 No. 48 “On Judicial Practice in Cases of Fraud, Misappropriation and Embezzlement”). The supreme court additionally clarified that if access to the commission of legally significant actions in relation to someone else’s property, although it was mediated by use of digital information, computer equipment, software products (relevant applications), was not determined by interference with the operation of storage, processing and transmission of digital information, and in any other illegal way (deception or abuse of trust, physical coercion, and etc.) the deed does not constitute a crime under Article 159.6 of the Criminal Code of the Russian Federation. Thus, the Supreme Court of the Russian Federation considers the intervention event as a differentiating feature. We shall note the full validity, consistency and constructiveness of the court explanations. Since the context and logic of reasoning allows, we shall note that the legal position of the highest court, as expressed in the decisions of the Plenum, is a necessary and integral part of the legal system of Russia, expresses the only correct version of interpretation and application of the provisions of regulatory legal acts, contributes to the unity of law enforcement practice. Since the provisions of the above resolutions contain the only correct version of the interpretation of legal norms, they predetermine, detail and clarify their direction, scope, limits, meanings of individual provisions, which makes it possible to extend the generally binding legal nature to the resolutions themselves. This provision helps to strengthen the effectiveness of law enforcement in the Russian Federation.

In a similar way, it is possible to speak out in relation to the corpus delicti described in Article 137 of the Criminal Code of the Russian Federation “Violation of the Inviolability of Private Life”, where the feature characterizing the subject is disclosed by indicating personal and family secrets. It is quite obvious that in this case it means the nature of the information - it must disclose the circumstances related to the individual autonomy of the individual and not subject to control by the institutions of public authority. Wherein, the legislator does not reflect the form of such information - documented or digital. From the foregoing, it follows the seemingly obvious conclusion that information about a person’s private life can be presented in the form of a digital sequence of signals, stored, processed and transmitted by means of computer and other microprocessor technology.

In the context of the foregoing, we find it possible to indicate the following circumstance - any information has a character (its significance, semantic meaning, legal regime) and a form (a type of objectification in the external environment). In other words, traces of a person’s memory similarly contain a certain array of information, however, until the moment of their expression (pronunciation), they are not objectified in any way and cannot be transmitted to other subjects. In this example, we are trying to demonstrate a close correlation and, at the same time, not the identity of the nature and form of information (messages, data). Please note that the digital nature of information is its form, while the nature can be different. Therefore, illegal actions in relation to digital information can infringe on a wide range of generic objects of criminal law protection. It seems that this circle is not and cannot be exhaustive, since digitalization covers all large spheres of public life, organically introducing itself into existing social practices, and, therefore, it is hardly possible to provide a complete and final list of corpus delicti in which digital information will act as subject of encroachment.

So, for example, information that constitutes the secret of telephone conversations (the subject of a crime under Article 138 of the Criminal Code of the Russian Federation) can be presented in digital form; secrecy of voting (Article 140 of the Criminal Code of the Russian Federation); the secret of adoption (Article 155 of the Criminal Code of the Russian Federation); commercial, tax or banking secrets (Article 183 of the Criminal Code of the Russian Federation).

CONCLUSION

Based on the foregoing, we come to the conclusion that the main feature of a crime in the field of circulation of digital information is the subject of encroachment, which shall be expressed in the form of information (messages, data) circulating in information and telecommunication devices, their systems and networks, namely illegal, culpable influence on it shall determine the harm caused to public relations. Wherein, the nature of such information can be different; this information can act as that social value about which certain legal relationships have developed

or be a means of their implementation - these circumstances are indifferent for classifying acts as crimes in the field of digital information circulation.

The variety of forms and methods of unlawful influence on digital information generates a significant number of other signs that characterize certain types of digital crimes $[10,11,12]$.

Firstly, the possibility of finding the guilty person at a considerable distance from the scene of the crime or the victim within execution of the objective side. When transferring the information to a machine-readable medium from which access to information and telecommunication networks and systems can be carried out, it is necessary to understand that, although memory devices are a carrier of such information, they are not the only component of a computer technology, which distinguishes them, for example, from USB information carriers. An essential characteristic of a digital device is the ability to transmit traffic - receiving and sending the digital information. Wherein, these processes cannot always occur with the direct participation of the user; many software products can operate in the background, performing certain operations in a deactivated state. The most common example of such a process is updating a software library, automatically loading a newer version of an application. Another question is what the user can control (allow or deny such processes). The above confirms the thesis that the information entered into the memory of a digital device can be modified or copied by some program elements without the direct participation of the user of such a device [13]. The foregoing determines the possibility of remote unauthorized access to memory devices of computer equipment, as a result of which the destruction, blocking, modification, copying of digital information, or neutralization of the means of its protection occurs.

Secondly, the need to overcome the means of protecting digital information. Modern computer technology as part of the basic equipment has such means (identification and authentication systems, password protection systems, firewall, anti-virus protection, biometric data entry systems, and etc.).

Thirdly, the axiomatic leaving the material traces of illegal access, information circulation processes at various stages are recorded by various devices (computers, servers, routers, base transceiver stations, VPN server administrators), which is why it is secured and used for the purposes of evidence.

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