Posted by Jesus Martin Calvo on 31 Aug 2009 at 02:10 pm
Conviction in La Rioja to access outside email accounts
According to reports Europa Press, the Criminal Court No. 2 of Logroño has imposed a penalty of one year imprisonment and a fine of 2,160 euros, plus the payment of costs, a neighbor of Rincon de Soto (La Rioja) for a crime of discovery of secrets (articles 197-201 Criminal Code).
The processed consented without permission in April 2006 to two mail accounts whose passwords knew and changed, reading the messages and personal attachments that were included in them. In addition, on 20 June 2006, sent an email from one of the accounts "with obscene images and rude" to the father of the account holder with the intent to "cause discord and humiliation in their family environment" with the knowledge of the "decline in the essential rights of personality" following the ruling. A similar case recently occurred less than a month when, after a police investigation, he stopped in Pamplona a man accused of "access an email account and send pictures humiliating others." The first statement in this sense occurred in 2004 was resolved with an agreement between the parties.
The incident occurred during a family crisis and processed accounts accessed from the computers of his father's company, located in the town of Rincon de Soto (La Rioja), knowing in advance the personal content of these accounts. Until February 2007, made use of the two email accounts to have access to existing messages and files as well as those received in the whole period.
The ruling includes suspend execution of sentence of imprisonment if the processed pay the fine, costs and not commit any crime for two years. The offense includes a prison sentence of one to four years to be imposed in the upper half it is done for profit, so that the sentence imposed in this ruling is the minimum accepted by the Penal Code, although it could consider treating the result of the proven facts.
Remember that if "made by the persons in charge or responsible for the files, computer media, electronic or telematic, files or records, the penalty is imprisonment of three to five years and if they spread, give or reveal the sensitive data, the penalty is in the upper half "as outlined in Article 197.4 of the Penal Code, and other specialties if it occurs at work or an official. The prosecution of this crime should be, in general, ex parte and forgiveness of the offended extinguish the criminal action or the penalty imposed without prejudice to the possible pardon.
Image: tuexperto (flickr)
7 comments to "conviction in La Rioja to access outside email accounts"
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The virus industry is worth billions of euros | Paul F Burgueño on 03 Sep 2009 at 10:32 am #
[...] Its digital counterpart, the legal consequences of impersonating another person and the consequences of illegally accessing a mail account of others. It's been almost 45 minutes of intense debate that has kept audiences on the edge to [...]
UnDesgraciado on 14 Sep 2009 at 5:42 pm #
In any case, convicted of "revealing secrets" since even enter an account is NOT a crime because there is no seizure nor can demonstrate Dolo (intention to invade privacy), but if you send emails revealing data 3rd individuals outside the offended and yes the offense was consummated.
Still 1 year imprisonment is excessive.
Jesus Martin Calvo on 14 Sep 2009 at 6:52 pm #
Hello UnDesgraciado, in this case the typical behavior is clearly described in Article 197.1 of the Penal Code "Whoever, to discover the secrets or infringement of privacy of another without his consent, takes possession of his papers, letters, emails electronic or any other documents or personal effects [...] shall be punished with imprisonment from one to four years and a fine of twelve to twenty four months. "
Enter the e-mail account of another person without their consent is the online equivalent to review all correspondence from his post and is protected by Article 18 of the Spanish Constitution.
The intent is conscious access and empowerment comes from having "in his possession" the account, discovering its secrets (your emails) and violating their privacy. The prison sentence imposed is the minimum for this offense.
Considering that also "revealed his secrets" (photos), the penalty would be between two and five years as the 197.3, which is not shown in the sentence.
To read more about the subject, see this news enlarged here.
UnDesgraciado on 17 Sep 2009 at 5:50 pm #
Thanks for the info D. Jesus.
Even so, comparisons are odious, access to a mail account is equated more to reach into a mailbox or open but not necessarily have to touch, see or open the contents (ie, letters) . The access an account have implicitly implies the possibility of invading private data of its rightful owner but can that you do not necessarily have the need to invade the privacy of another.
Art. 197.1 provides 2 ways:
- "That, to discover the secrets or violate the privacy of another without his consent ..." -> It is necessary to demonstrate the intention to it and try it.
- "... Takes possession of his papers, letters, emails or any other documents or personal effects ..." -> seizure is relative depending on how you look, go into a foreign account and leave it in a time of 2 seconds does not imply or fewer seizure, and it is necessary to prove beyond doubt that such a seizure there and this on an email that unless you print it or store it in doc or pdf formats in a computer, I doubt there Seizure .
As stated here:
http://www.iurismatica.com/blog/la-intromision-en-la-aplicacion-de-correo-electronico-como-delito-de-descubrimiento-y-revelacion-de-secretos/
"The entry inconsentido in the email application from another person and the tour of the various databases that the system contains, even without opening a message, you can be criminally typical because it is occurring with an invasion of privacy and likely to facilitate knowledge of making sensitive data and reserved. "
CAN inconsentido access but typically have to be punished.
Already in the case is set out clearly the intent of it but it is unfair to penis as much (or may sometimes worse) a person acting with intent and one that simply give for trying to mess with such a vulnerability account (direct hacking).
At the same time punishing 1-4 years is grossly disproportionate, especially because the Code should be adapted to new technologies but trying all the ambiguities and shortcomings that exist in the same.
Why in the network there is only criminal punishment but no education, security or control (it's like going into a car by highway without first examining you had to study and to obtain a license, and a highway where there are no signs or markings security, only if you're gonna have erras punishment ... And yet in the Internet the only way to learn to be self-taught or method "trial and error").
I say this because I already commented in the forum of the Association of Internet, I am involved in something similar for wanting to know of someone who was very fond of, I made a stupid, correct the mistake but also had the unwelcome visit from the authorities for a crime discovery ... I will not excuse my mistake, I made a stupid and must pay it but I am very very very unfair to impose a penalty of imprisonment or absence of intention or seizure.
Jesus Martin Calvo on 01 Oct 2009 at 11:41 #
UnDesgaciado Hello again,
Sorry for the long delay in answer you.
Each case is unique and requires individual study to draw valid conclusions.
Personally, that someone had access to my emails constitute an infringement of privacy. If you want to direct hacking pleasure, creating a mail account with a password hard and put it into practice, but do not do with the accounts of others. Allow me another metaphor: if I'm trained as a locksmith, you will not see good choice to go home when not being used to improve my techniques, but then simply log for a glass of water (legally are separate issues, I just want to illustrate my argument).
Of course, strictly, we are talking about may be punished because only a judge can tell if it is punished or not and to make such claims must go to each particular case, I think you should play in this regard the words of George Snowdrops whose post and quotes from that sentence also refers to a particular case, take this into account. I only tried to interpret the law and jurisprudence to develop some general ideas.
For specific cases need to know detailed information on the situation and could give a valid opinion. Sorry I can not offer more help and I hope your case is resolved. Remember that under Penal Code 201.3, in this case the forgiveness of the offended "extinguish the criminal action or sentence.
A greeting.
A greeting
UnDesgraciado on 02 Oct 2009 to the 1:17 pm #
Please answer D. Jesus.
I agree that each case is individualized, but the topic is being homogenized in all cases provided access to e inconsentido really knowing whether or not there was intention to invade privacy. It is assumed that always the case and there is no presumption of innocence, especially in the computer field.
With regard to the simile:
- "If you want to direct hacking pleasure, creating a mail account with a password hard and put it into practice, but do not do with the accounts of others." If you know before hand the key can not be direct hacking and yes, those things do not have to be done, but today does not provide direct hacking as a crime but possible action to post the same (which may be the desire invasion of privacy). It is expected that the reform of the Criminal C. include such an act as punishable, then there would be no discussion, would be a crime, period, but now is not atypical and say that whenever we make the art come 197.1 is characteristic of a lack Total technical aspects and the consequence is that people be blamed for crimes not consummated or innocent of them. I'm not saying there right now to find information but also know what not to do is give a couple of classes and think that microsoft is all there is to know computer.
- "If I'm trained as a locksmith, you will not see good choice to go home when not being used to improve my techniques, but then simply log for a glass of water (legally are separate issues, I just want to illustrate my argument)." If I understand, but according to the comparison:
* Locksmith -> computer expert (sometimes not necessary to be "locksmith to open a" door ").
* Access thus, requires more than just a keyboard. for instance, special software for it (repeat open a door is sometimes easier to carry a toolbox in tow).
* Take a glass, I do not see the intention.
It would be a simile, but as I say all comparisons are odious, this: "a guy walks down the street, suddenly a strong light relejos toward the door of a house, comes over and sees a bunch of keys on the side of a pot, catch it and see if they are in the house. Bingo. Son of the house, the boy opens the door, but not enter. He pulls out a piece of paper, writes that he has probably lost the key and puts a mobile no so that when you return the kid call the owner to return the keys. The boy closes the door and leaves the paper in a visible place near the door. A few hours after the complaint for the kid to have the keys and a possible burglary attempt. "
Obviously, no one doubts that the boy opened the door of the house and may have the possibility of paving but it is not known and acted in good faith, safeguarding the keys to the return of the master ... But this analogy is perhaps not as close to cases mail. Take another:
"A guy goes into a cafe, pay for a section of 1 hour. When you turn the terminal will automatically start the program under mail and MSN messenger password of another person previously left carelessly on the terminal. The boy agrees and the account of another person. This envisions the checking account that belongs to another person without opening emails from their rightful owners and forwards to the same account or other secondary owner of the same information that the account was unprotected and could have easily stolen by anyone else. Suppose further that, with a view to protecting the account, it alters your password to one that is sent only to the owner of the same with the dual purpose of protecting and bringing to account of it to its rightful owner. Let the kid leaves the cyber and denounced months later to discover and reveal secrets. "
If we get the same thing, mere access is already a crime, that person is a criminal hopelessly right?. Well here is not real. But there was one similarity:
http://www.aranzadi.es/index.php/informacion-juridica/jurisprudencia/penal/sentencia-tribunal-supremo-num-3582007-sala-de-lo-penal-seccion-1-de-30-abril
2 accused were acquitted of this offense because they have private information on public terminal is not a crime regardless of what happened.
Hence the emphasis on really distinguish where the offense is obvious (if logroño) when one is merely an access that does not mean anything. Otherwise, you could make my public key and not worry about having safe keys and the time when someone came in, reporting this alleged crime. But would it be an abuse of the law?
Greetings and thanks for responding.
PS: I know what forgiveness ... but as you can find forgiveness when even aggravated knows who has been the author and do not even have possibility to contact the victim to fear that this could be considered as a pressure on my part for forgiveness and addition this person is not even presented as a private prosecution but today happens to the matter, being the acting prosecutor of the office not knowing whether or not to continue aggravated his complaint and now knowing the author the fact? Sincerely is a mess.
ana on 01 Jan 2010 at 9:35 pm #
I would like to get in touch with Undesgraciado, a greeting.