Brazil's New Law Is Not Tough Enough To Fight Electronic Crimes
By Renato Opice Blum
After 15 years of discussion, Brazil's government has enacted a law that typifies computer-related crimes and covers important issues such as electronic device invasion, unauthorized remote access and interruption of web services. This article intends to analyze some aspects of the long-awaited Law 12.737/2012.
The first point to mention is the fact that the law limits the typifying of invasion to cases in which an “infringement of security mechanisms” occurs, excluding computer devices without protection mechanisms from the enforcement. Moreover, the expressions “security mechanism” and “computer device”—only hardware, what about software?—are not defined by the law, raising doubts about the legal framework in certain cases.
Furthermore, since the conduct “to invade” gives the idea of “entering forcefully,” cases of inappropriate acquisition of data through social engineering techniques and other means; e.g., disclosure of password by the owner to third parties, theoretically would not be included in the newly born classification. This is because such actions would not constitute violation but merely unauthorized access.
Additionally, it is possible to foresee a broad debate about who would be the “owner of the dispositive” invaded—an expression used to designate the victim. The legal text seems to refer only to the owner, not clarifying if an eventual possessor or user could also be protected.
It is also important to mention that concerning the penalization of disclosure of industrial secrets obtained by invasion, there is an apparent duplicity of legal prediction; the improper disclosure was already considered a crime by the Protection of Industrial Property Law (Law 9.279/96).
It’s true enough that the new law comprises many other interesting topics. However, the sentences imposed appear to be too soft, allowing the enforcement of the conditions of Special Courts’ proceedings. This when the international trend is precisely the opposite; recently it became news that the state of California condemned to 10 years of prison a hacker accused of stealing pictures from celebrities through the web—in addition to the payment of a compensation for the sum of $76,000.
Obviously, we are not advocating the sudden increase of Brazil’s prison population just to punish computer crimes. Nevertheless, it is hard to understand how the creation of a law after so many years of debate can establish punishments with such a weak deterrent effect. Such aspect of the penalties is disconcerting since, in the majority of computer crimes, the material loss is just a small part of the problem; the damage occurs within the intimate sphere of private lives or concerning sensible business information—what makes the lost data invaluable for the victim.
For these reasons, it seems lenient to punish such conducts with the concession of benefits directed to minor crimes. If technology achieved a relevant role in the daily life of the Brazilian citizen, the law should follow this change, recognizing in practice its gigantic potential to affect people’s lives—for better or, unfortunately, for worse.
Professor Renato Opice Blum, attorney, economist and president of the IT Advisory Board of Fecomercio, received an MBA on Electronic Law Coordinator at Sao Paulo Law School and in the 1st Digital Law course of FGV/GVLaw in 2011. Blum is a professor at USP and Mackenzie; member of Octopus Cybercrime Community connected with Council of Europe; president of the Council of Security and Information Technology at Commerce Federation of São Paulo and of the American Chamber of Commerce Technology Law Committee; advisor for the Brazilian Bar High Technology Crimes Committee, and invited professor at the following international programs: Technology Policy Institute; Council of Europe; SEDONA; American Bar Association; International Technology Law Association; High Technology Crime Investigation Association; Information Systems Security Association; International Association of Privacy Professionals; Georgetown Law CLE; International Law Association and Inter-American Bar Association. Blum is co-author of the “Manual of Electronic Law and Internet” and "Electronic Law: Internet and Courts."