Criminal forfeiture and restriction-of-use orders in sentencing high tech offenders

Courts in the United States, Europe and Australia have in recent years experimented with sanctions which require the computer of an offender convicted of high tech crimes to be forfeited, or which seek to prohibit the offender from undertaking certain, or all, computer-related activities like possessing or using computers or gaining access to the internet. Some courts have also imposed requirements that the offender's computer activities be monitored by a probation officer or that the offender's computer have filtering software installed to prevent access to certain types of content. This paper considers whether such orders are legally and practically justifiable as appropriate judicial punishments. Toni Makkai Director This paper looks at certain sanctions that have been applied In recent years to persons convicted of computer-related crimes. The kinds of crimes under consideration include gaining access to computers without authorisation (so-called 'hacking' or 'cracking'), dissemination of viruses, and possession or distribution of illegal content such as child pornography. The discussion examines whether the use of criminal forfeiture and restrlction-of-use orders satisfy the various aims of sentencing, and considers whether the courts in a number of countries have acted in accordance with the law when seeking to impose these sanctions. The methodology used follows that adopted by Smith, Grabosky and Urbas (2004). It Involved the Identification of 240 cases of high tech crime from Australasia, Europe and the United States in which sentences were imposed on offenders. Cases were identified from searches conducted of legal databases, media reports and secondary sources including books and government reports. In 33 cases, sentences were imposed that involved the use of criminal forfeiture and restrlction-ofuse orders, and it is these cases which form the basis of the following discussion. There have only been isolated cases reported in Australia: * In one case, the offender's computer was subject to a forfeiture order to facilitate compliance with other conditions that he seek psychiatric treatment for an addiction to cybersex (R v Burnham, District Court of Queensland, Ipswich, 20 June 2002; see West 2003). * In 2003, a 17-year-old was charged with the attempted murder of a man he met in an internet chat room, with whom he allegedly had sexual contact following their online meeting. Part of the ball conditions imposed on the teenager were orders that he not use the Internet except for school work, that he obey a nightly curfew of 9pm, and that he report to police three times a week until his next court appearance. His computer, allegedly used to make contact with the man, was seized by police (see Milovanovic 2003). * A further case involved a 69-year-old man in New South Wales who was charged with possession and publication of child pornography. He was originally sentenced to two years imprisonment for the publication offence and five years probation for the possession with conditions that he not use any computer at any time connected to the internet, and that he not be in the company of any person under the age of 18 without the specific written permission of a probation officer. On appeal the sentence was reduced to two years imprisonment with a non-parole period of 12 months (R v Geoffrey Seaton Rooney, Nowra District Court, 18 November 2003). In the absence of other decisions, Australian courts will be guided by what has occurred in other countries that have experimented with such orders - especially the United States (where most such cases have been decided). Although sentencing laws differ across jurisdictions, the fundamental principles remain similar in determining whether these orders fulfill the aims of sentencing. High tech crime and punishment Grotius, the seventeenth century juristand philosopher of law, defined punishment as 'the infliction of an ill suffered for an ill done. …