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, in addition to payment of costs, a neighbor of Rincon de Soto (La Rioja) for a crime of discovery of secrets (articles 197-201 Criminal Code).
The agreed processed without permission in April 2006 to two email accounts whose passwords knew and changed by reading the messages and personal attachments that were included in them. In addition, on June 20, 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 occurred a little less than a month when, after a police investigation, were arrested in Pamplona with a man accused of "access an email account and send pictures humiliating others." The first statement in this regard 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 the company from his father, located in the town of Rincón de Soto (La Rioja), knowing in advance the content of these personal accounts. Until February 2007, made use of the two email accounts to have access to existing messages and files in addition to 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 enforced in the upper half of it is done for profit, so that the penalty imposed in this sentence 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 in computer, electronics or telematics, files or records, the penalty is imprisonment for three to five years, and if they spread, give or reveal the sensitive data, the penalty is at the upper end "as described in article 197.4 of the Penal Code, and other specialties if it occurs in the workplace or by 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)
8 comments to "Conviction in La Rioja to access outside email accounts"
Trackback URI | Subscribe to comments
The virus industry is worth billions of euros | Pablo F Burgueño on 03 September 2009 at 10:32 am #
[...] Digital counterpart, the legal consequences of impersonating another person and the consequences of illegal access to an outside email account. It's been almost 45 minutes of intense debate that has kept the audience on the edge to [...]
UnDesgraciado on 14 September 2009 at 5:42 pm #
In any case, convicted of "revealing secrets" since entering an account is not yet a crime because there is no seizure nor can demonstrate Dolo (intention to invade privacy), but if mails reveal data 3rd individuals themselves outside the offended and the offense was consummated.
Still 1 year imprisonment is excessive.
Jesus Martin Calvo on 14 September 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 violate the privacy of another without his consent, takes possession of his papers, letters, e-mail mail 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" count, 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 according to 197.3, which is not shown in the statement.
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 content (ie, letters) . The means to access an account implicitly be allowed to invade 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 two ways:
- He who, 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, take account of others 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, if not print it or store it in doc or pdf formats in a computer, I doubt that there Seizure .
As it says 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 about the different databases that the system contains, even without opening any messages, can be criminally typical in that it is taking an invasion of privacy and likely to facilitate an understanding of data making very sensitive and reserved. "
CAN inconsentido access but typically have to be punished.
I know that in the case described the fraud is clear but it is unfair of the penis is the same (or sometimes may be worse) to a person who acts with intent and one that simply gives you mess with it by testing the 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 it.
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 had to study and examine you to get a card, and a highway where there are no signs or markings security, only if, Erras going to have punishment ... and why in 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 error but also had the unwelcome visit from the authorities for a crime discovery ... I do not want potty 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 October 1, 2009 at 11:41 am #
UnDesgaciado Hello again,
Sorry for the long delay in answering.
Each case is unique and requires its individualized study to obtain valid conclusions.
Personally, that someone has had access to my emails is a violation 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 am forming as a locksmith, you will not see good choice to go home when you are unemployed to improve my techniques, but then just go in for a glass of water (legally are separate issues, I just want to illustrate my argument).
Of course, strictly speaking, 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 have seen in this context the words of Jorge Bells whose post and quotes from that decision also refers to a particular case, keep that in mind. I only tried to interpret the law and jurisprudence to develop some general ideas.
Individual cases need to know detailed information on the situation and could be issued a valid opinion. Sorry I can not offer more help and I hope that your case is resolved. Remember that under Penal Code 201.3, in this case the forgiveness of the offended "extinguish the criminal action or the penalty imposed."
A greeting.
Greetings
UnDesgraciado on October 2, 2009 at 1:17 pm #
Thank you for responding D. Jesus.
I agree that each case is individual, but this issue 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 computing 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, these 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 criminal, period, but now is not atypical and say that whenever we make the art come 197.1's own ignorance Total technical and consequence of which is to be blamed people 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 am forming as a locksmith, you will not see good choice to go home when it is idle to improve my techniques, but then just go in for a glass of water (legally are separate issues, I just want to illustrate my argument)." If I understand it, but according to the simile:
* Locksmith -> computer expert (sometimes not necessary to be "Lock" to open a "door").
* Get 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 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 ruts toward the door of a house, comes over and sees a bunch of keys on the side of a pot, takes him and see if they are in the house. Bingo. Son of the house, the boy opened the door, but not enter. He pulls out a piece of paper, writes that he has probably lost the key and puts a cell phone number so that when you return the kid call the owner to return the keys. The boy closes the door and leave the paper in a visible place near the door. A few hours later the kid denounce him for having the keys and a possible burglary attempt. "
Obviously, no one doubts that the boy opened the door of the house may be able to raid but do not know and acted in good faith, safeguarding the keys to the return of the master ... But this analogy may not be as close to cases mail. Take another:
"A guy goes into a cafe, pay for a 1 hour. When you turn the handset automatically starts the program under mail and MSN messenger password of another person previously stopped carelessly in the terminal. The boy thus access to the account of another person. This envisions the checking account is another person without opening emails from its rightful owner and forwards to the same account or other secondary owner of the same information about 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 the account and made available to it to its rightful owner. Let the kid leaves the cyber and denounced months later to discover and reveal secrets. "
If we take the same: the mere access is already a crime, that person is inevitably a criminal 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
It acquitted two accused of this crime 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 only about a mere access does not mean anything. Otherwise, it could make public my keys and not worry about having safe keys at the time that someone come in, denouncing this supposed crime. But what would be an abuse of the law?
Greetings and thanks for responding.
PS: I know what forgiveness ... but as you can get forgiveness when not even know who was worse 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 also this person not even presented as a private prosecution but today happens to the matter, with the prosecutor who acts on its own ignoring whether aggravated or not to continue with its complaint and now knowing the author the fact? Honestly is a mess.
ana on 01 Jan 2010 at 9:35 pm #
I would like to get in touch with Undesgraciado, a greeting.
Keru on 06 May 2010 at 1:30 pm #
Quisera I contact Undesgraciado Jesus Martin Calvo and for advice on a matter.