Cyberharassment, Sexting and Other High-Tech Offenses Involving Michigan Residents—Are We Victims or Criminals?∗ PATRICK E. CORBETT ∗∗ TABLE OF CONTENTS I. BACKGROUND ....................................................................................239 A. People Are Getting Into Trouble Not Just as Victims, but also as Criminal Perpetrators .................................................239 B. Will a Prosecutor Bring Charges? ..........................................241 C. Can Michigan Prosecute The Offense? If so, in Which County?....................................................................................241 II. SEXUAL PREDATORS .........................................................................243 III. CHILD PORNOGRAPHY .......................................................................246 IV. “SEXTING” AND SOLICITING A CHILD FOR IMMORAL PURPOSES .....248 V. THREATENING COMMUNICATIONS ...................................................250 VI. STALKING .........................................................................................252 VII. CYBERBULLING.................................................................................253 VIII. IDENTIFY THEFT AND RELATED OFFENSES ......................................256 A. Michigan’s Identity Theft Protection Act ................................257 B. Identity Theft and Cyberbullying .............................................258 C. Identity Theft to Commit Another Crime or to Obtain Goods………………………………………….………..……260 ∗ This Article expands upon an article published in September 2008 by Aspen Publishing Company’s Journal of Internet Law. See Patrick Corbett, Cyberbullying and Other High-Tech Crimes Involving Teens, 12 J. OF INTERNET L. 1 (2008). Specifically, this Article explores Michigan law in greater detail in the context of an expanded set of hypothetical situations. Additionally, this Article serves as an update to an article written by the author in 2001. See Patrick Corbett, State and Federal Criminal Cyberlaw and Legislation Survey, 18 T.M. COOLEY L. REV. 7 (2001). In addition to the Michigan courts issuing some important decisions, the Michigan legislature has passed numerous additional laws since 2001. This Article discusses some of those recently decided cases and new laws. ∗∗ Patrick Corbett is a professor of criminal law and criminal procedure at Thomas M. Cooley Law School, Lansing, Michigan. Prior to becoming a professor, Professor Corbett served for ten years as an Assistant United States Attorney for the Eastern District of Michigan and for more than two years as the Deputy Chief of the High Tech Crime Unit at the Michigan Attorney General’s Office. Currently, Professor Corbett teaches criminal law, criminal procedure, and cybercrimes, in addition to offering continuing education to various community and law-related groups. 238 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 D. Identity Theft and the Sale of Personal Data...........................259 E. Identity Theft and False Police Reports ..................................260 IX. VIDEO VOYEURISM ...........................................................................260 X. EAVESDROPPING ...............................................................................262 XI. HACKING ...........................................................................................264 A. Unauthorized Access to a Computer System ...........................264 B. Unauthorized Access to Another’s WiFi Computer System ...265 C. Unauthorized Insertion of a Computer Program ....................266 D. Using a Computer to Commit Fraud .......................................267 XII. EVEN IF NOT PROSECUTED, MICHIGANDERS COULD FACE OTHER PROBLEMS .......................................................................................268 CONCLUSION ..............................................................................................269 INTRODUCTION According to the Pew Internet and American Life Project, most people in the United States are online. 1 It might be simpler to list those who are not online: infants, some senior citizens, and a handful of others. From software that simplifies electronic data storage and retrieval to devices that facilitate immediate and direct communication, our high-tech society has some fantastic tools to use. Without a doubt, the technology is amazing; it is not surprising there are so many active users. This Internet usage, however, is not without risks. Many people are so enamored with the technology itself that security concerns are often overlooked. In addition, legislatures across the country are passing laws criminalizing conduct involving the use of both the Internet and high-tech devices. Is the public keeping up with the new laws? How about our middle-schoolers, teens, and young adults? Do they have any idea that what they are doing could get them suspended, expelled, sued, or prosecuted? Do they know when they are victims of a crime or when they have committed a crime? This Article is intended to help people in Michigan—from homeowners and renters to students and visitors—who all are at risk of being a victim, a criminal, or both. By applying Michigan law to realistic hypotheticals, 2 this Article will explore how teens, young adults, and others 1. According to the Pew Internet and American Life Project, the following percentage of users are online: 93% of people ages 12–17, 80–89% of people ages 18–49, 71–78% of people ages 50–59, 56–62% of people ages 60–69, and 27–45% of people ages 70 and older. See Sydney Jones & Susannah Fox, Generations Online in 2009, PEW INTERNET & AM. LIFE PROJECT, 2 (Jan. 29, 2009), available at http://www.pewinternet.org/~/media//Files/Reports/2009/PIP_Generations_2009.pdf. 2. While Michigan law will be used to discuss the hypothetical situations, this Article applies generally to readers in any state. Michigan is not alone in passing laws criminalizing conduct on the Internet and usage of high-tech devices. Readers from other Winter 2010] MICHIGAN HIGH-TECH OFFENSES 239 are getting into trouble, both as victims and as criminal perpetrators. This information is fundamentally important to making well-informed decisions about how to use the Internet and high-tech devices. Hopefully, greater awareness will lead to more responsible usage of the incredible technology available today. I. BACKGROUND A. People Are Getting Into Trouble Not Just as Victims, but also as Criminal Perpetrators What one does online is not anonymous. People are watching: friends, family, police, crooks, sexual predators, school officials, universities, employers, potential employers, and people contemplating a lawsuit. The combination of many viewers, easily accessible high-tech communication devices, and a culture that encourages sharing personal information has resulted in trouble for technology users in a variety of ways: • “A recent survey from IT security firm Panda Security found that a little over two out of three teenagers have attempted to hack into their friends’ online accounts.” 3 • “Genesee County Prosecutor David Leyton is considering criminal charges against a teen who allegedly had an inappropriate photo on a cellphone.”4 • “About one in 10 videogame players show signs of addictive behavior that could have negative effects on their family, friends and school work, according to a new study.” 5 • “More than one in 10 teachers are bullied by pupils and colleagues through text messages, emails and social networking sites, new research shows.” 6 states are urged to consult with relevant state laws to determine what criminal violations may have occurred with the hypothetical situations discussed herein. 3. Matthew Harwood, Two in Three Teens Have Tried Hacking, Study Finds, SECURITY MANAGEMENT (May 18, 2009, 11:43 AM), http://www.securitymanagement.com/print/5638. 4. Julie Morrison, ‘Sexting’ Rage Among Teens Could Lead to Criminal Charges in Some Cases, MLIVE.COM (Apr. 17, 2009, 8:00 AM), http://www.mlive.com/news /flint/index.ssf/2009/04/sexting_rage_among_teens_could.html. 5. Videogamers Show Signs of Addictive Behavior-Study, REUTERS (Apr. 20, 2009, 12:35 PM), http://www.reuters.com/article/idUSN2040035320090420. 6. Anthea Lipsett, Cyberbullying ‘Affects 1 in 10 Teachers,’ THE GUARDIAN (Apr. 4, 2009), http://www.guardian.co.uk/education/2009/apr/04/cyber-bullying-schools-teachers- survey. 240 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 • “Police in the central Connecticut city of Middletown suspect that as many as seven girls were recently assaulted by men they met on MySpace.” 7 • A Washington Post article highlighted how teens on social network sites are “easy targets” of thieves because they are “more trusting” and “less security-savvy.” 8 • “Two [Novato, California] teenage boys were arrested on charges of possessing ‘destructive devices’ after a video allegedly showing the duo firebombing an empty airplane hangar was posted online at MySpace.com . . . . [P]olice officers stationed at each middle and high school in Novato regularly surf the MySpace site for signs that local teenagers may be involved in criminal activity such as drug or alcohol use, sexual assault or vandalism.” 9 • The University of Dayton found that 42 percent of employers in their database that responded to a survey stated they “would consider factoring a Facebook profile into their hiring decisions.” 10 • “A Pennsylvania school principal has filed a lawsuit against four former students, claiming they falsely portrayed him as a pot smoker, beer guzzler and pornography lover and sullied his reputation through mock MySpace profiles.” 11 • A 15-year-old teen was charged in Canada with the criminal offense of “personation after allegedly posing as a school teacher on Facebook, a social networking website.” 12 From receiving suspensions, receiving criminal charges and having lawsuits filed against them, to being victims of a sexual predator, cyberbully, or identity thief, people—kids and adults—are encountering 7. Associated Press, Teens Reveal Too Much Online, WIRED.COM (Feb. 5, 2006), http://www.wirednews.com/news/wireservice/1,70163-0.html. 8. Kim Hart, Phish-Hooked: Thieves Find Easy Pickings on Social Sites, WASHINGTON POST (July 16, 2006), http://www.washingtonpost.com/wp- dyn/content/article/2006/07/15/AR2006071500119_pf.html. 9. Teens Arrested After Posting Alleged Firebombing Video on MySpace.com, USA TODAY (Apr. 5, 2006, 11:27 PM), http://www.usatoday.com/tech/news/2006-04-05- myspace-arrest_x.htm. 10. Martha Irvine, Privacy Becomes Concern as Social Online Sites Become Fair Game, USA TODAY (Dec. 30, 2006, 5:59 AM), http://usatoday.com/tech/news/2006-12-30- privacy-online_x.htm. 11. Anne Broache, Principal Sues Ex-Students over MySpace Profiles, CNET NEWS (Apr. 9, 2007, 11:00 AM), http://news.cnet.com/2102-1030_3-6174506.html. 12. Peter Black, Identity Impersonation on Facebook, PETER BLACK’S FREEDOM TO DIFFER (May 7, 2008, 10:49 AM), http://www.freedomtodiffer.com/freedom_to_differ/privacy/index.html. Winter 2010] MICHIGAN HIGH-TECH OFFENSES 241 serious problems. How do the Michigan criminal laws address what people are doing online? Will a prosecutor file charges? Michigan’s criminal laws can both protect Michiganders and be used to prosecute them. B. Will a Prosecutor Bring Charges? Before examining the laws that empower a prosecutor to legally file charges, it is important to ask whether, as a practical matter, a prosecutor would consider filing charges against a minor or an adult for some of the seemingly insignificant criminal conduct described in this Article. In pondering this question, it helps to think about a situation most readers have faced in the non-cyber crime context. Have you ever driven your car well in excess of the speed limit and passed a police car? Most of us have. Generally, the officer lets the driver pass. Other times, however, the officer stops and gives the driver a warning. Occasionally, the officer issues the driver a speeding ticket. The conduct of the officer varies due to the officer’s discretion. In each instance, the officer had the legal authority to issue a ticket. Why one is issued a speeding ticket on any given day is dependent upon the discretion of the officer issuing the ticket. The primary reason for issuing a ticket is likely because the officer wants to specifically deter the driver from speeding and to generally deter others (especially eyewitnesses) from doing the same. The same holds true in the cyber crime context as well. If the legal authority exists to file charges, a prosecutor has the discretion to file charges if he has the evidence to support those charges. C. Can Michigan Prosecute The Offense? If so, in Which County? In 2002, the Michigan legislature enacted a statute giving Michigan prosecutors broad authority to file charges in Michigan. 13 Applicable to all crimes and not just high-tech crimes, the law indicates that Michigan has jurisdiction to prosecute a crime if any of the following circumstances exist: • the defendant commits any part of the crime in Michigan; 14 • an attempt to commit the crime occurs in Michigan; 15 13. MICH. COMP. LAWS ANN. § 762.2 (West Supp. 2010). 14. Id. § 762.2(2). An offense is considered to be “partly committed” within Michigan if: An act constituting an element of the criminal offense is committed within this state . . . [t]he result or consequences of an act constituting an element of the criminal offense occur[s] within this state . . . [or t]he criminal offense produces consequences that have a materially harmful impact upon the system of government or the community welfare of this state, or results in persons within the state being defrauded or otherwise harmed. Id. 242 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 • part of a conspiracy to commit the crime occurred in Michigan; 16 • a victim or law enforcement officer posing as a victim is located in the state when the crime is committed; 17 or • the offense “produces substantial and detrimental effects within” 18 Michigan. 19 While this law clearly establishes the authority of Michigan prosecutors to file charges in Michigan that may also be prosecutable in another state, it does not specify the county in which charges should be filed. Michigan has a general-jurisdiction statute that provides: “Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.” 20 In other words, if a crime involves conduct in multiple counties, either county can prosecute.21 In some instances, the Michigan legislature has created jurisdictional laws for specific crimes. For example, under the recently passed Identity Theft Protection Act, prosecuting identity theft is authorized in “[t]he jurisdiction in which the offense occurred,” “[t]he jurisdiction in which the information used to commit the violation was illegally used,” or “[t]he jurisdiction in which the victim resides.” 22 Another law authorizes 15. Id. § 762.2(1)(b). 16. Id. § 762.2(1)(c). 17. Id. § 762.2(1)(d). 18. See Strassheim v. Daily, 221 U.S. 280, 284–85 (1911). If a jury should believe the evidence, and find that Daily did the acts that led Armstrong to betray his trust, deceived the board of control, and induced by fraud the payment by the state, the usage of the civilized world would warrant Michigan in punishing him, although he never had set foot in the state until after the fraud was complete. Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power. Id. 19. § 762.2(1). 20. Id. § 762.8. 21. See People v. King, 721 N.W.2d 271, 275–76 (Mich. Ct. App. 2006) (holding that jurisdiction to try a charge of accessory after the fact properly lied in the county in which the underlying crime occurred even though the actual accessory assistance was rendered outside the county). 22. § 762.10c. The Michigan Legislature amended this provision, effective April 1, 2011, to “expand the violations that may be prosecuted in the jurisdiction in which the offense occurred, in which the information used to commit the violation was illegally used, or in which the victim lives.” See Identify Theft Revisions, Bill Analysis, S.B. 223, available at http://www.legislature.mi.gov/documents/2009-2010/billanalysis/Senate/pdf/ 2009-SFA-0223-F.pdf. For a further discussion of Michigan’s Identity Theft Protection Act, see infra notes 127–147 and accompanying text. Winter 2010] MICHIGAN HIGH-TECH OFFENSES 243 prosecution of unauthorized access to computer systems in either the jurisdiction where the access was initiated or the jurisdiction where the victim’s computer system resides. 23 Notably, these laws do not address which county should or must prosecute the case. That decision lies with the prosecutor of each affected county, presumably in connection with a thorough discussion among prosecutors in other affected counties. Assuming a Michigan prosecutor has the legal authority to file charges in his or her county, what are the relevant criminal laws pertaining to high- tech crimes? Michigan has laws that cover many areas: sexual predators, child pornography, sexting, soliciting a child for immoral purposes, threatening communications, stalking, cyberbullying, identity theft, video voyeurism, eavesdropping, and illegal hacking. 24 II. SEXUAL PREDATORS Sally, age thirteen, is updating her MySpace page when she gets an instant message from a male with the screen name “Candyman.” Over a series of communications, many sexual in nature, Candyman and Sally become friends. Candyman convinces Sally to meet him at the local McDonald’s. After buying her a chocolate shake, he tries to force her into his car in the parking lot. Sally is able to defend herself and breaks away. A subsequent search of Candyman’s car reveals the presence of a teddy bear, a rose, rope, condoms, and a digital camera. Do Candyman’s actions constitute a Michigan crime? Law enforcement officers have dedicated large quantities of resources to pursuing defendants like Candyman. 25 Sally is the victim of this crime; she would not face any criminal liability for her conduct. Generally, these types of incidents have been prosecuted as computer-related, criminal sexual-conduct offenses. Candyman would face numerous potential charges. Michigan law criminalizes using “the internet or a computer, computer program, computer network, or computer system to communicate with any person 23. § 762.10b. 24. Michigan has many other laws related to high-tech crimes that will not be discussed in this Article. See, e.g., Unsolicited Commercial E-Mail Protection Act, MICH. COMP. LAWS ANN. §§ 445.2501–445.2508 (West Supp. 2010); id. § 600.2975 (prohibiting website with instructions on manufacturing methamphetamine); id. § 750.540 (prohibiting the criminal use of electronic medium of communication); Michigan Children’s Protection Registry Act, MICH. COMP. LAWS ANN. §§ 752.1061–752.1068 (West Supp. 2010). 25. Internet Crimes Against Children (“ICAC”) task forces are set up all over the country. See Regional Task Force Contacts, INTERNET CRIMES AGAINST CHILDREN TASK FORCE, http://www.thecjportal.org/ICAC/Pages/TaskForceContactInfo.aspx (last visited Mar. 21, 2011). 244 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 for the purpose” of committing various crimes, 26 including the following crimes relevant here: • Child sexually abusive activity; 27 • Kidnapping; 28 • Criminal sexual conduct; 29 and • Assault with intent to commit criminal sexual conduct. 30 The sentence for this computer crime offense and the underlying crime that was facilitated by the computer crime are linked. The underlying crime is severely punishable, and the statute requires a similarly harsh punishment for the computer crime. 31 Significantly, “[t]he court may order that a term of imprisonment imposed under this section be served consecutively to any term of imprisonment imposed for conviction of the underlying offense.” 32 Notably, the court may order the defendant to reimburse the victim for “expenses incurred in relation to the violation” of the statute. 33 The Michigan courts considered the constitutionality of Michigan Compiled Laws section 750.145d in People v. Cervi. 34 In Cervi, the prosecutor charged the defendant with using a computer to communicate with a perceived minor for the purpose of attempting to commit or committing criminal sexual conduct in the third degree (“CSC III”) and using the Internet to communicate with a perceived minor in order to attempt to produce or produce sexually abusive material.35 The defendant moved to dismiss the charges, which were premised solely on his computer communications, on the basis that the statute is unconstitutionally vague and overbroad in violation of the First Amendment. 36 The Michigan Court of Appeals held that, as a matter of first impression, the statute does not violate the First Amendment. 37 Specifically, section 750.145d does not impermissibly burden free expression because “words alone” are not punishable under the statute. 38 26. MICH. COMP. LAWS ANN. § 750.145d(1) (West 2004). For a complete list of covered offenses, see id. §§ 750.145d(1)(a)–(c). 27. MICH. COMP. LAWS ANN. § 750.145c (West Supp. 2010). 28. Id. § 750.349. 29. Id. §§ 750.520b–750.520e. 30. Id. § 750.520g. 31. Id. § 750.145d(2). 32. Id. § 750.145d(3). 33. Id. § 750.145d(8). 34. People v. Cervi, 717 N.W.2d 356, 359 (Mich. Ct. App. 2006). 35. Id. 36. Id. at 362 n.6. 37. Id. at 369–70. 38. Id. at 359. Winter 2010] MICHIGAN HIGH-TECH OFFENSES 245 Rather, the statute criminalizes communication with a minor or perceived minor when the defendant has the specific intent to commit or attempt to commit particular crimes against such a victim. 39 In other words, the defendant must perform an act in furtherance of the “words” with the specific intent to commit or attempt to commit CSC III with a minor or perceived minor (e.g., seeking out the victim and driving to meet the perceived minor). 40 Furthermore, according to the court, the state’s compelling interest in preventing sexual crimes against children weighs heavily against protecting such speech.41 A review of nearly any social network site by the casual observer reveals that many teens disclose a large quantity of personal information about themselves, seemingly with no regard as to how the disclosures might affect their ability to have a fully private life. In 2006, the National Center for Missing and Exploited Children conducted a study involving children and Internet activity. 42 Out of 1,500 youths between the ages of ten and seventeen who engaged in regular Internet activities,43 the study found that: • One in seven received a sexual solicitation or approach over the Internet; 44 • One in three had unwanted exposure to pictures of naked people or people having sex. 45 Clearly, there is a downside to teens’ prolific and unmonitored use of the various high-tech forms of communication. Awareness of the potential consequences of such conduct can help prevent some future problems. To the extent that children are victimized, however, law enforcement can help. Internet Crimes Against Children task forces exist in nearly every state. 46 These task forces are comprised of local, state, and federal law enforcement 39. Id. 40. Id. at 366–67. 41. The court noted that “courts in several other jurisdictions have upheld similar ‘child luring’ statutes against First Amendment challenges.” Id. at 367 (citing People v. Foley, 713 N.E.2d 123, 129 (N.Y. 2000); People v. Ruppenthal, 771 N.E.2d 1002, 1005 (Ill. App. Ct. 2002); United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (“Any limited or incidental effect on speech does not infringe on any constitutionally protected rights of adults.”); see also People v. Dooley, No. 257483, 2006 WL 73620, at *3 (Mich. Ct. App. Jan. 12, 2006) (holding section 750.145d of the Michigan Compiled Laws constitutional)). 42. Janis Wolak et al., Online Victimization of Youth: Five Years Later, CRIMES AGAINST CHILDREN RESEARCH CENTER (2006), available at http://www.missingkids.com/en_US/publications/NC167.pdf. 43. Id. at 4. 44. Id. at 1. 45. Id. at 29. 46. For a list of ICAC task forces around the country, see Regional Task Force Contacts, supra note 25. 246 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 officers who are actively pursuing these types of cases and are available to help child victims. III. CHILD PORNOGRAPHY While doing their homework, ninth-graders Pete and Bill go online and find a website that has photos of naked middle school girls in sexual poses. They copy ten of these images to a CD so that they can show them to some friends later. Under Michigan Law, would the teens’ actions constitute criminal conduct? Does it make a difference that the images were freely available on the Internet? Like most states, Michigan criminalizes conduct related to “child sexually abusive material.” 47 Among other acts, Michigan law prohibits production of child sexually abusive material (punishable by up to twenty years in prison), 48 distribution of child sexually abusive material (punishable by up to seven years in prison),49 and knowing possession of child sexually abusive material (punishable by up to four years in prison). 50 A “child” is defined as one under the age of eighteen (unless emancipated by law), 51 which obviously includes middle school girls (and, in fact, includes just about all high school students).52 In addition, the images have to meet the definition of “child sexually abusive material,” which generally includes a child engaged in one of the statutorily listed sexual acts.53 One can conclude, after a quick review of the statute, that Pete and Bill are knowingly 54 in possession of child sexually abusive material 47. The crimes discussed in this section are listed as offenses under Michigan’s Sex Offenders Registration Act, MICH. COMP. LAWS ANN. §§ 28.721–28.736 (West 1995). While youthful exemptions exist (specified juvenile offense circumstances, crime occurred when a defendant is under thirteen and not five or more years older than victim, the defendant is thirteen to seventeen and not more than three years older than victim), the court system has to work through application of these exemptions in each individual case. Further discussion of Michigan’s Sex Offenders Registration Act is beyond the scope of this Article. 48. MICH. COMP. LAWS ANN. § 750.145c(2) (West Supp. 2010). 49. Id. § 750.145c(3). 50. Id. § 750.145c(4). 51. Id. § 750.145c(1)(b). 52. To obtain a conviction under sections 750.145c(2)–(4), the prosecutor must also prove that the defendant knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not take reasonable precautions to determine the age of the child. Id. 53. Id. §§ 750.145c(1)(h), (m). 54. The Michigan Supreme Court recently decided that defendants can be guilty of “knowing possession” of child sexually abusive material, even when the “only child sexually abusive material later found on their computers, however, had been automatically stored in temporary Internet files.” People v. Flick, 790 N.W.2d 295, 297–98 (Mich. 2010). Winter 2010] MICHIGAN HIGH-TECH OFFENSES 247 (assuming that the images meet the definition for a “listed sexual act”), which is a four-year felony. 55 But does their conduct involve more? The mere fact that the boys wanted to show the images to others is likely insufficient to show they distributed child sexually abusive material. The statute requires some actual distribution to others or, at a minimum, preparation to distribute the material to others.56 Moreover, the Michigan statutes do not separately criminalize the possession of child sexually abusive material from the intent to distribute it to others. Does the conduct rise to the level of production of child sexually abusive material? The recently decided case People v. Hill 57 is instructive here. In Hill, the defendant downloaded child sexually abusive material from some foreign websites and copied these images to a recordable CD (“CD-R”). 58 The issue before the court was whether the defendant made or produced child sexually abusive material as contemplated by Michigan’s child sexually abusive material statute. 59 On the other hand, did the defendant’s conduct only involve possession of child sexually abusive material? 60 The lower courts concluded that when the defendant downloaded the child sexually abusive material to his computer from the foreign websites and then copied the photographs, videos, and images from his computer onto the CD-Rs, the defendant was making or producing copies or reproductions of images depicting children engaged in sexual acts. 61 In other words, the defendant was producing child sexually abusive material as contemplated by Michigan law. 62 The Michigan Supreme Court, however, reversed this decision: [T]he term “possesses” in the phrase “[a] person who knowingly possesses any child sexually abusive material” in MCL 750.145c(4) includes both actual and constructive possession. Contrary to defendants’ arguments, the evidence presented at the preliminary examinations established that defendant[s] . . . did more than passively view child sexually abusive material on the Internet. . . . As a result, each defendant constructively possessed those images, which amounts to possession of child sexually abusive material. Id. 55. MICH. COMP. LAWS ANN. § 750.145c(4) (West Supp. 2010). 56. Id. § 750.145c(3). 57. 786 N.W.2d 601 (Mich. 2010). 58. Id. at 604. 59. Id. at 602–03. 60. Id. at 604. 61. Id. at 604–05. 62. People v. Hill, 715 N.W.2d 301, 309 (Mich. Ct. App. 2006). Defendant’s argument that use of the CD–Rs was just a mechanism by which to store possessed child pornography ignores the reality that the storing of the images was accomplished through the copying or duplication of already existing images that continued to exist after the images were burned onto the CD–Rs. The language of the statute is clear and unambiguous. The decision by the Legislature to specifically include reproductions or copies in the definition of “child sexually abusive material,” which term is then incorporated into § 145c(2), leaves no room 248 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 We hold that when the terms “produces” and “makes” in MCL 750.145c(2) are construed in accordance with their immediately surrounding text and with a view toward the statute’s overall organization, including a graduated scheme of offenses and punishments, a defendant may not be convicted of the 20-year felony when there is not proof beyond a reasonable doubt that he had a criminal intent to do something other than possess the CD- Rs for his own personal use. Just as a person who downloads a song from the Internet and burns it to a CD-R is not considered to have produced or made a song, so a person who burns a prohibited image to a CD-R for his personal use has not produced or made the image. 63 Under Hill, Pete and Bill from the hypothetical would not likely be prosecuted for the twenty-year felony of production of child sexually abusive material. Although Pete and Bill wanted to “show them to some friends later,” it appears they made the CD-Rs for their own personal use. 64 While arguably the possession section of the statute is applicable here, the decision regarding whether to prosecute is not as clear. Once again, it comes down to how the prosecutor decides to exercise his discretion. Will the next case that the prosecutor brings for a deterrent impact involve a teen in your community? IV. “SEXTING” AND SOLICITING A CHILD FOR IMMORAL PURPOSES On several occasions via text messages over his cell phone, Jim, age eighteen, asks his girlfriend Carol, age fifteen, to take a sexual picture of herself without clothes and send it to him through her cell phone. Carol reluctantly decides to take the photo and electronically sends it to Jim. Jim receives it and electronically sends it to five of his friends who all decide to keep Carol’s image on their cell phones. Do these acts qualify as a crime? If so, what crime was committed? Who could be charged? This hypothetical considers what is commonly referred to as “sexting.” 65 Once again, a prosecutor might consider Michigan’s child for a contrary judicial construction. The Legislature is deemed to have intended the meaning clearly expressed, and we must enforce the statute as written. Id. 63. Hill, 786 N.W.2d at 601. 64. Interestingly, the Michigan Supreme Court held “a defendant may not be convicted of the 20-year felony when there is not proof beyond a reasonable doubt that he had a criminal intent to do something other than possess the CD–Rs for his own personal use.” Id. at 603 (emphasis added). Presumably, if there was evidence that a defendant had the intent to do something more than merely possess the images, a prosecutor could, consistent with the Hill decision, consider more severe charges. 65. See Barbara Poncelet, Sexting, ABOUT.COM (Sept. 17, 2009), http://teenhealth.about.com/od/glossary/g/sextingdef.htm (“Sexting is the slang term for the Winter 2010] MICHIGAN HIGH-TECH OFFENSES 249 sexually abusive material statute.66 Assuming the image fits the definition of a “listed sexual act” 67 under the statute, Carol clearly and knowingly produced child sexually abusive material. She is well under eighteen and thus a child for purposes of child sexually abusive material.68 Even though the facts suggest she took the photo “reluctantly,” she obviously knew what she was doing. Should she be held responsible as a producer of child sexually abusive material? A prosecutor might think so. What about Jim? Michigan’s production-of-child-sexually-abusive- material statute allows a prosecutor to also charge someone who persuaded “a child to engage in a child sexually abusive activity69 for the purpose of producing any child sexually abusive material.” 70 Arguably, Jim persuaded Carol to take the picture—she was reluctant to do it, and it appears that she did so because he repeatedly asked. Assuming that her sexual pose for the picture falls within the definition of “child sexually abusive activity,” 71 Jim seemingly persuaded Carol to do this “for the purpose of producing any child sexually abusive material.” 72 Like Carol, Jim has exposed himself to prosecution for a felony punishable by up to twenty years in prison.73 A prosecutor could also consider charging both Carol and Jim with distribution of child sexually abusive material.74 Carol electronically sent the image to Jim, and Jim distributed it to his five friends. There is no indication from the facts that the distribution was not done with full knowledge that Carol was a “child” 75—that is, a person under the age of eighteen. Additionally, a prosecutor could consider charging all of them— Carol, Jim, and the five friends—with knowing possession of child sexually abusive material.76 There is no evidence suggesting they did not know the sexual image of Carol was on their cell phones. They all had reason to know that Carol was under eighteen and, hence, a child under the statute. use of a cell phone or other similar electronic device to distribute pictures or video of sexually explicit images. It can also refer to text messages of a sexually-charged nature.”). 66. See supra notes 47–64 and accompanying text. 67. MICH. COMP. LAWS ANN. § 750.145c(1)(h) (West Supp. 2010). 68. Id. § 750.145c(1)(b). 69. The statute defines “child sexually abusive activity” as a child engaging in a “listed sexual act.” Id. § 750.145c(1)(l). “Listed sexual act” is further defined as “sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.” Id. § 750.145c(1)(h). These acts are further defined within the statute. Id. §§ 750.145c(1)(f), (g), (i), (j), (n), (o), (p). 70. Id. § 750.145c(2). 71. See supra notes 67–69 and accompanying text. 72. § 750.145c(2). 73. Id. § 750.145c(2). 74. Id. § 750.145c(3). 75. Id. § 750.145c(1)(b). 76. Id. § 750.145c(4). 250 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 Moreover, a prosecutor could also charge a separate felony against all of the players because a “computer” was used to produce, distribute, and possess the child sexually abusive material.77 Michigan’s computer crime laws appear to include broad enough definitions so that a cell phone would be considered a “computer” for purposes of the law. 78 Finally, a prosecutor might consider charging Jim with soliciting a minor for immoral purposes. 79 This statute requires that the victim be “a child less than 16 years of age, regardless of whether the person knows the child or knows the actual age of the child” 80 and that the solicitation be done “with the intent to induce or force that child or individual to commit an immoral act.” 81 Notably, this charge (and using a computer to communicate with another to commit solicitation of a minor) could be pursued even if Carol decided not to send a sexual photo to Jim. 82 What if our young lovers argued the “we-didn’t-know-it-was-wrong” defense? Does this defense have any merit? In our criminal justice system, mistake of the law is not a defense, except in rare circumstances.83 All are presumed to know the law. As such, as a matter of law, their lack of knowledge makes no difference at all. However, it is not likely that a prosecutor would charge felonies against everyone. Most would agree that there are better ways to resolve the problem presented here. Nevertheless, the prosecutor has the discretion to charge these felonies; knowledge of that fact might motivate some to simply not take the picture. V. THREATENING COMMUNICATIONS It is June and thirteen-year-old Lucy is sick and tired of school. She sends separate emails to five of her friends saying that she is going to explode a bomb just outside of her school. Is Lucy’s conduct a harmless 77. See MICH. COMP. LAWS ANN. § 752.796(1) (West 2000) (“A person shall not use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime.”). 78. See id. § 752.792(3) (“‘Computer’ means any connected, directly interoperable or interactive device, equipment, or facility that uses a computer program or other instructions to perform specific operations including logical, arithmetic, or memory functions with or on computer data or a computer program and that can store, retrieve, alter, or communicate the results of the operations to a person, computer program, computer, computer system, or computer network.”). 79. MICH. COMP. LAWS ANN. § 750.145a (West Supp. 2010). 80. Id. 81. Id. 82. A prosecutor could also consider charging Jim with using “the internet or a computer, computer program, computer network, or computer system to communicate with any person for the purpose” of committing solicitation of a minor for immoral purposes. Id. § 750.145d(1)(a). See also supra notes 26–33 and accompanying text. 83. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 167 (5th ed. 2009). Winter 2010] MICHIGAN HIGH-TECH OFFENSES 251 prank or a serious crime? Would a Michigan prosecutor pursue this offense? In 2002, the Michigan legislature passed the Michigan Anti-Terrorism Act, 84 a series of bills concerned with fighting terrorism. 85 One of the statutes pertains to using the Internet or another device to disrupt public safety. 86 This law prohibits using the “internet or a telecommunications device or system or other electronic device or system so as to disrupt the functions of the public safety, educational, commercial or governmental operations within this state.” 87 The act is a felony if it is done “with the intent to commit a willful and deliberate act that is all of the following:”88 • A felony under Michigan law (whether or not committed in Michigan); 89 • “An act that the person knows or has reason to know is dangerous to human life”; 90 and • “An act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.” 91 Significantly, this offense is punishable by up to twenty years in prison. 92 Should a thirteen-year-old be prosecuted under this statute, or is the statute reserved for prosecuting only terrorists? While the statute is referred to as the Michigan Anti-Terrorism Act, 93 the law generally prohibits a “person” from committing various acts. The law defines “person” as follows: “[A]n individual, agent, association, charitable organization, corporation, joint apprenticeship committee, joint stock company, labor organization, legal representative, mutual company, partnership, receiver, trust, trustee, trustee in bankruptcy, unincorporated organization, or any other legal or commercial entity.”94 Quite plainly, the definition of “person” is so broad that it includes no such limitation; a thirteen-year-old girl could be prosecuted using this anti-terrorism law. In fact, in 2005 a twelve-year-old in Macomb County, Michigan was prosecuted for conduct similar to that of Lucy’s. 95 Once again, it is clear 84. MICH. COMP. LAWS ANN. § 750.543a (West 2004). 85. Id. §§ 750.543a–750.543z. 86. Id. § 750.543p. 87. Id. § 750.543p(1). 88. Id. 89. Id. § 750.543p(1)(a). 90. Id. § 750.543p(1)(b). 91. Id. § 750.543p(1)(c). 92. Id. § 750.543p(2). 93. Id. § 750.543a. 94. Id. § 750.543b(e). 95. Christy Arboscello et al., Girl, 12, Charged as Sender of Threat: Terrorism Law Used; Chippewa Valley Kids Just Glad It’s Over, DETROIT FREE PRESS, Dec. 16, 2005, at 252 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 that the decision to prosecute hinges on the discretion of the prosecutor. Similar acts in the same county or community could be handled in different ways. 96 Should one assume that the prosecutor will let the teen walk or will only charge him or her with a misdemeanor? Obviously, the answer is “no.” VI. STALKING Amanda sends five separate emails to Sydney telling Sydney that she is going to “kill her” if Sydney does not stay away from Amanda’s boyfriend, Jack. After the fifth email, Sydney is so upset that she misses a week of school. Do Amanda’s actions qualify as a crime under Michigan law? Michigan law criminalizes a “willful course of conduct” involving “repeated unconsented contact” with another individual that would make a “reasonable person” feel frightened or harassed, and that actually causes the victim to feel frightened or harassed. 97 Commonly referred to as “stalking,” this offense is a misdemeanor punishable by up to one year in prison. 98 How upsetting must an email be to be considered harassment under Michigan law? In general, due to the “reasonable person” language in the statute, the email needs to be upsetting enough that the average person would feel harassed, frightened, or intimidated. Amanda sent enough emails to satisfy the requirement for a “course of conduct”; the emails constituted “unconsented contact” because Sydney did not request these emails; the emails actually caused Sydney to feel frightened, as exhibited by her one week absence from school. Moreover, a reasonable person would also be frightened by another’s repeated assertion of a desire to “kill.” Is the offense more serious because a computer was used in sending the emails? As previously noted, Michigan law criminalizes the use of a computer to communicate with any person for the purpose of committing, attempting, or conspiring to commit various crimes, including the crime of stalking. 99 Interestingly, while the underlying crime of stalking is a one- year misdemeanor, using a computer to communicate with another for the purpose of committing the same crime is a felony. 100 Once again, the legislature made clear that the crime is worse when a computer is involved. 1A, available at http://www.accessmylibrary.com/article-1G1-139853140/firl-12-charged- sender.html. 96. Peggy Walsh-Sarnecki & Christy Arboscello, Is It Terror? School Cases Raise Questions, DETROIT FREE PRESS, Dec. 17, 2005, A1, available at 2005 WLNR 26963194 (highlighting how similar cases in the same county were handled in vastly different ways: one as a misdemeanor and the other as a felony punishable by up to twenty years in prison). 97. MICH. COMP. LAWS ANN. § 750.411h (West 1998). 98. Id. § 750.411h(2)(a). 99. MICH. COMP. LAWS ANN. § 750.145d (West Supp. 2010). 100. Id. § 750.145d(2)(b). Winter 2010] MICHIGAN HIGH-TECH OFFENSES 253 Importantly, due to the threat to “kill,” Amanda could also face the felony charge of “aggravated stalking.” 101 This charge is punishable by up to five years in prison. 102 The prosecutor would need to determine whether the words used in the email constituted a “credible threat” under the statute.103 In sum, Amanda could face at least two separate criminal charges 104 due to her email conduct. Suppose that Amanda has a friend who is encouraging her to send Sydney the nasty messages. Is the friend also criminally responsible even though she did not actually send the emails? Under Michigan law, an aider and abettor is criminally punishable in the same way as the person whose fingers were on the keys. 105 Any assistance, as long as the assistance was given with the intent that the crime be committed and had the effect of inducing the crime, is sufficient to hold the friend criminally responsible. 106 VII. CYBERBULLING Robert dislikes Eric so he decides to set up a MySpace page in Eric’s name. On the site, posing as Eric, he posts messages stating that he (Eric) is a homosexual and is looking for a partner. In reality, Eric is not a homosexual. Eric is so upset that he misses school for several days and has to visit a doctor due to extraordinary headaches. Do Robert’s actions constitute a crime under Michigan law? It appears that the Internet has become a fashionable medium for harassment, especially among middle school and high school 101. Id. § 750.411i. 102. Id. § 750.411i(3)(a). 103. Id. § 750.411i(1)(b). “Credible threat” means a threat to kill another individual or a threat to inflict physical injury upon another individual that is made in any manner or in any context that causes the individual hearing or receiving the threat to reasonably fear for his or her safety or the safety of another individual. Id. 104. One misdemeanor (stalking) and one felony (using a computer to communicate with another to commit stalking) or two felonies (aggravated stalking and using a computer to communicate with another to commit stalking)—depending on how the prosecutor charges the crimes. See id. §§ 750.145d, 750.411h, 750.411i. 105. Id. § 767.39 (“Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”). 106. See People v. Palmer, 220 N.W.2d 393, 397 (Mich. 1974) (Any assistance, including “words or deeds which may support, encourage or incite the commission of a crime,” is sufficient as long as it had the “effect of inducing the commission of the crime.”); People v. Wirth, 273 N.W.2d 104, 107 (Mich. Ct. App. 1978) (“To be held criminally liable for a specific intent crime as an aider or abettor, a defendant must have had either the requisite specific intent or known that the actual perpetrator had the required intent.”). 254 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 populations. 107 According to a 2006 study published by the National Center for Missing and Exploited Children, one in eleven kids between the ages of ten and seventeen had been threatened or harassed online.108 Commonly referred to as “cyberbullying,” this form of harassment can occur in various forms, including using any form of electronic communication to harass, threaten, antagonize, or intimidate another person; posing as someone else for purposes of harassing that person or others; and using a person’s picture or a digitally enhanced image without his or her permission. 109 Various explanations exist for the increased harassment using the Internet and other high-tech devices, including the ready availability of high-tech communication devices and access points to people of all ages, the perceived anonymity of the Internet providing a false sense of security to users, and the ability to inflict pain without having to see the results in person. Michigan law criminalizes the act of posting messages without consent. 110 Under a law passed in 2001, individuals are prohibited from posting “a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, computer network, or other electronic medium of communication without the victim’s consent, if all of the following apply:” 111 • “The person knows or has reason to know that posting the message could cause” multiple instances of “unconsented contact” with the victim; 112 • “Posting the message is intended to cause conduct that would make the victim feel” frightened or harassed; 113 107. For more information on cyberbullying and how to protect kids, see Cyberbullying, NAT’L CRIME PREVENTION COUNCIL, http://www.ncpc.org/topics/cyberbullying (last visited Mar. 8, 2011); see also Cyber Bullying—Anti-Social Behavior Online, SYMANTEC (Mar. 30, 2007), http://www.symantec.com/norton/library/familyresource/article.jsp?aid=pr_cyberbully. 108. Wolak et al., supra note 42, at 10–11. 109. Cyberbullying, WHATIS.COM, http://whatis.techtarget.com/definition/0,,sid9_gci1023061,00.html (last visited July 18, 2011). Cyberbullying is the use of cell phones, instant messaging, e-mail, chat rooms or social networking sites such as Facebook and Twitter to harass, threaten or intimidate someone. Cyberbullying is often done by children, who have increasingly early access to these technologies. The problem is compounded by the fact that a bully can hide behind an electronic veil, disguising his or her true identity. This secrecy makes it difficult to trace the source and encourages bullies to behave more aggressively than they might face-to-face. Id. 110. MICH. COMP. LAWS ANN. § 750.411s (West 2004). 111. Id. § 750.411s(1). 112. Id. § 750.411s(1)(a). 113. Id. § 750.411s(1)(b). Winter 2010] MICHIGAN HIGH-TECH OFFENSES 255 • “Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel” frightened or harassed; 114 and • “Conduct arising from posting the message causes the victim to suffer emotional distress and to feel” frightened or harassed. 115 This offense is a felony punishable by up to two years in prison. 116 Significantly, there is no requirement that the posted message be untruthful. The message could be entirely true and still be criminal so long as all elements of the offense are met. Moreover, there appears to be no clear requirement that the “unconsented contact” actually occur as long as it “could” occur from the posting of the message. Assuming that the prosecutor chose to prosecute the case, it appears that Robert from the hypothetical could face a felony charge.117 He posted the messages through MySpace, a medium of communication. 118 It appears that Robert intended the posting to result in harassment to Eric—Robert decided to set up the site because he disliked Eric and wanted people to contact him looking for a gay partner. The posted message would cause a reasonable person to feel harassed in various ways. It would be upsetting to have people misconstrue one’s sexual orientation, or simply to have this type of information disseminated in an uncontrolled manner. Finally, Eric 114. Id. § 750.411s(1)(c). 115. Id. § 750.411s(1)(d). 116. Id. § 750.411s(2)(a); see also id. § 750.411s(2)(b)(ii) (explaining that the offense is a five-year felony if, inter alia, “[p]osting the message is in violation of a condition of probation”). 117. The Michigan Hall of Justice, in conjunction with the Judicial Data Warehouse, is in the process of electronically compiling data on charges filed in the various circuit courts in Michigan. Interview with Marcus Dobek, Michigan Court Administrator, and Kristen Pawlowski, Project Manager, Judicial Data Warehouse (June 8, 2009, May 7, 2010, and May 13, 2010) (on file with author and reviewable upon request and approval by Marcus Dobek). While the data is not complete (it does not yet include major counties like Kent, Macomb, and Oakland counties), it appears that prosecutors have not used this statute often against juveniles. According to data provided by Judicial Data Warehouse Project Manager Kristen Pawlowski, however, two different misdemeanor statutes have been used quite often that could cover harassing conduct. Section 750.352 of the Michigan Compiled Laws Annotated prohibits “[m]olesting and disturbing persons in pursuit of occupation, vocation or avocation,” and section 750.540e prohibits “[m]alicious use of service provided by telecommunications service provider.” According to the incomplete data, over sixty juvenile misdemeanor charges have been filed under section 750.352 since 1999, and over eight-hundred juvenile misdemeanor charges have been filed under section 750.540e since 1991. This suggests that prosecutors want to prosecute juveniles for harassing conduct but are disinclined to file felony charges. 118. While this hypothetical explores a cyberbullying scenario with a person’s use of a social network site, the statute applies to “any medium of communication.” MICH. COMP. LAWS ANN. § 750.411s(1) (West 2004) (emphasis added). What if Eric carelessly left his cell phone out in the open, and Robert used it in a similar way? Obviously, there are a myriad of communication techniques by which this crime could be committed. 256 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 actually suffered emotional distress because he missed several days of school and had to visit a doctor due to extraordinary headaches. Would Robert face any other charges due to his MySpace conduct? Was he pretending to be another person? The next section will briefly explore Michigan’s Identity Theft Protection Act 119 and how it applies in this context and other situations. VIII. IDENTIFY THEFT AND RELATED OFFENSES Identity theft continues to be a problem in the United States.120 According to statistics compiled by the United States Federal Trade Commission (“FTC”), identity theft comprised twenty-one percent of all fraud complaints registered with the FTC for the period of January 1 to December 31, 2009. 121 According to the FTC, “[i]dentity theft was the number one complaint category . . . for calendar year 2009.” 122 The combination of “easy credit” with technology that allows for easy storage and access of personal data in electronic format appears to give identity thieves a clear advantage. 123 How does Michigan fare? Michigan ranks eighteenth in the nation for complaints “[p]er 100,000 unit of population” filed with the FTC. 124 119. Identity Theft Protection Act, MICH. COMP. LAWS ANN. § 445.61 (West Supp. 2010). 120. Because there is no certainty that an identity theft case will be prosecuted, victims of identity theft need to educate themselves on how to protect their identity and repair damaged identities. The following websites are helpful resources: Identity Theft Unit, MICH. STATE POLICE, http://www.michigan.gov/identity-theft (last visited Mar. 8, 2011); OFF. OF THE ATT’Y GEN., www.michigan.gov/ag (last visited Mar. 8, 2011); Fighting Back Against Identity Theft, FED. TRADE COMMISSION, http://www.ftc.gov/bcp/edu/microsites/idtheft/ (last visited Mar. 8, 2011); Identity Theft and Identity Fraud, THE U.S. DEP’T OF JUST., http://www.usdoj.gov/criminal/fraud/websites/idtheft.html (last visited Mar. 8, 2011); The College Student’s Guide to Identity Theft, SCAMBUSTERS, http://www.scambusters.org/identitytheft/collegestudentsguide.html (last visited June 25, 2011). 121. Consumer Sentinel Network Data Book for January—December 2009, FED. TRADE COMMISSION 3 (Feb. 2010), http://www.ftc.gov/sentinel/reports/sentinel-annual- reports/sentinel-cy2009.pdf. 122. Id. Notably, “Florida is the state with the highest per capita rate of reported identity theft complaints, followed by Arizona and Texas.” Id. What do those states have in common? 123. John Leland & Tom Zeller Jr., Technology and Easy Credit Give Identity Thieves an Edge, N.Y. TIMES, May 30, 2006, at A1, available at http://www.nytimes.com/2006/05/30/us/30identity.html?_r=1 (“In recent years banks have campaigned energetically to extend more credit to more people with fewer hassles, and retailers and consumers have embraced instant, near-anonymous access to credit.”). 124. Identity Theft Consumer Complaint Data: Michigan: January 1–December 31, 2009, FED. TRADE COMMISSION (Feb. 2010), http://www.ftc.gov/bcp/edu/microsites/idtheft/downloads/CY2009/Michigan%20CY- 2009.pdf. Winter 2010] MICHIGAN HIGH-TECH OFFENSES 257 Michigan residents filed a total of 7,525 complaints with the FTC in 2009. 125 Most complaints were filed by Michigan individuals between the ages of twenty and twenty-nine, followed by those between the ages of thirty and thirty-nine. 126 A. Michigan’s Identity Theft Protection Act In 2004, the Michigan legislature passed the Identity Theft Protection Act, 127 a comprehensive piece of legislation covering a wide variety of actions. 128 Michigan law prohibits, inter alia, “concealing, withholding, or misrepresenting” one’s true identity and using, or attempting to use, “the personal identifying information of another person to . . . commit another unlawful act.” 129 “Personal identifying information” is defined very broadly, essentially including within its statutory definition any name or number that is associated with a specific person. 130 This offense is 125. Id. 126. Id. at 4. 127. Identity Theft Protection Act, MICH. COMP. LAWS ANN. §§ 445.61–445.77 (West Supp. 2010). An act to prohibit certain acts and practices concerning identity theft; to require notification of a security breach of a database that contains certain personal information; to provide for the powers and duties of certain state and local government officers and entities; to prescribe penalties and provide remedies; and to repeal acts and parts of acts. Id. 128. A full discussion of this statute is beyond the scope of this Article. This Section will discuss the statute in the context of a few hypothetical situations. For more laws on identity theft, see id. § 445.71(1)(a) (covers discrimination against victims of identity theft); id. §§ 445.71(1)(b), (c), (d) (covers conduct enabling identity theft); id. § 445.72 (covers notice of a security breach in computer system that possesses personal data). See also id. §§ 445.81–445.87 (Social Security Number Privacy Act); id. § 445.903(1)(jj) (some violations of the Identity Theft Protection Act are also actionable under the Consumer Protection Act as “unfair, unconscionable, or deceptive methods, acts, or practices”). The Michigan legislature amended the Identity Theft Protection Act, effective April 1, 2011, in various ways. See Identify Theft Revisions, Bill Analysis, S.B. 223, available at http://www.legislature.mi.gov/documents/2009-2010/billanalysis/Senate/pdf/2009-SFA- 0223-F.pdf; ID Theft: False Pretenses/Internet, Bill Analysis, S.B. 149, available at http://www.legislature.mi.gov/documents/2009-2010/billanalysis/Senate/pdf/2009-SFA- 0149-N.pdf; ID Theft: Forfeiture and Racketeering, Bill Analysis, H.B. 4325 & 4326, available at http://www.legislature.mi.gov/documents/2009- 2010/billanalysis/Senate/pdf/2009-SFA-4325-F.pdf. 129. MICH. COMP. LAWS ANN. § 445.65(1) (West Supp. 2010). This section also prohibits the same conduct to “[o]btain credit, goods, services, money, property, a vital record, a confidential telephone record, medical records or information, or employment.” Id. § 445.65(1)(b)(i). 130. Id. § 445.63(o). “Personal identifying information” means a name, number, or other information that is used for the purpose of identifying a specific person or providing access to a person’s financial accounts, including, but not limited to, a person’s name, address, telephone number, driver license or state personal identification card 258 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 punishable by up to five years in prison. 131 The statute broadly expands proper jurisdiction for prosecuting identity theft to numerous locations within Michigan. 132 The statute also prescribes a flexible statute of limitations,133 thus increasing the likelihood that identity theft charges are brought long after the actual theft. B. Identity Theft and Cyberbullying How does Michigan’s identity theft law apply to Robert, our cyberbully? In addition to potentially facing a charge for Michigan’s version of cyberbullying, Robert could also be facing an identity theft charge. He concealed his own true identity and used the “personal identifying information” of Eric to commit another unlawful act— cyberbullying. 134 Are cyberbullying and identity theft “more serious” crimes because a computer was used to commit them? Should they be? As already noted, Michigan law criminalizes the use of a computer to commit (or attempt to commit) a crime. 135 Quite clearly, the legislature determined that a general crime is more serious merely because a computer was used to commit the crime. Hence, in addition to cyberbullying and identity theft, Robert could also face a third charge because he used a computer to commit this crime. Significantly, the sentencing court has the discretion, authorized by statute, to run the prison sentence for the computer crime charge consecutive to the underlying charges. 136 C. Identity Theft to Commit Another Crime or to Obtain Goods Seventeen-year-old Jim goes online and buys beer from an Internet site. He uses his twenty-two-year-old brother’s credit card, which he took number, social security number, place of employment, employee identification number, employer or taxpayer identification number, government passport number, health insurance identification number, mother’s maiden name, demand deposit account number, savings account number, financial transaction device account number or the person’s account password, stock or other security certificate or account number, credit card number, vital record, or medical records or information. Id. 131. Id. § 445.69(1). 132. See supra note 22 and accompanying text. 133. The six-year statute of limitations on identity theft offenses under sections 445.65– 445.67 of the Michigan Compiled Laws Annotated starts tolling at the time the suspect who committed the identity theft is identified (or, if the identity of the suspect is known when the crime is committed, six years from the date of the crime). See also § 767.24(4). 134. See id. § 445.65(1)(b)(ii). 135. Id. § 752.796(1) (“A person shall not use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime.”); see also supra note 77 and accompanying text. 136. Id. § 752.797(4). Winter 2010] MICHIGAN HIGH-TECH OFFENSES 259 from his brother’s wallet while his family was finishing dinner. His brother knew that Jim wanted to buy some beer using his credit card, but the brother did not stop him. Is this a crime under Michigan law? Are there multiple crimes being committed? A couple of crimes come to mind immediately: purchasing of alcohol by a minor 137 and possibly fraud. 138 Will a prosecutor also consider the crime of identity theft? As already discussed, Michigan’s identity theft statute criminalizes the use of “personal identifying information” of others to “commit another unlawful act.” 139 Of course, “another unlawful act” includes the purchase of alcohol by a minor. Hence, because Jim used his brother’s name and credit card account number—the “personal identifying information of another”—to commit the crime of purchasing alcohol by a minor, he could face a charge of identity theft. Alternatively, the identity theft statute authorizes prosecution when the person conceals one’s own identity and uses the personal identifying information of another to obtain “goods.” 140 The facts of this hypothetical indicate that Jim’s twenty-two-year-old brother knew that Jim wanted to use his credit card to buy beer. Does that make a difference in the outcome? Michigan’s identity theft statute gives a defendant an “affirmative defense in a criminal prosecution” if “the person acted with the consent of the person whose personal identifying information was used, unless the person giving the consent knows that the information will be used to commit an unlawful act.” 141 Under the statute, the defendant has the burden of proof by “a preponderance of the evidence.” 142 Here, the brother’s implied consent does not help Jim because the brother knew that Jim wanted to use his credit card to illegally purchase alcohol. In the end, the prosecutor has various serious charges to consider bringing against Jim: purchase of alcohol by a minor, identity theft, and— because a computer was used—use of a computer to commit a crime. D. Identity Theft and the Sale of Personal Data Using the Internet, Ellen compiles a database of names, email addresses and street addresses and sells it on eBay. Has Ellen committed identity theft under Michigan law? Under Michigan law, a person shall not 137. MICH. COMP. LAWS ANN. § 436.1703 (West 1998). 138. MICH. COMP. LAWS ANN. § 750.218 (West 2004); see also MICH. COMP. LAWS ANN. § 752.794 (West Supp. 2010). A fraud prosecution may be difficult, however, due to the fact that the owner of the credit card knew that the seventeen-year-old wanted to buy beer with the credit card. 139. See supra note 129 and accompanying text; see generally MICH. COMP. LAWS ANN. §§ 445.61–445.69 (West Supp. 2010). 140. See supra note 129. 141. MICH. COMP. LAWS ANN. § 445.65(2)(d) (West Supp. 2010). 142. Id. § 445.65(2). 260 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 [s]ell or transfer, or attempt to sell or transfer, personal identifying information of another person if the person knows or has reason to know that the specific intended recipient will use, attempt to use, or further transfer the information to another person for the purpose of committing identity theft or another crime. 143 Nothing in the facts suggests that Ellen “knows or has reason to know that the specific intended recipient will use . . . the information . . . for the purpose of committing identity theft or another crime.” As such, it looks like a prosecutor would not be able to charge her. However, that does not mean that Michigan residents need not worry about people like Ellen who compile personal data of others for financial gain. Just because it is not a crime to compile personal data of others does not mean that one’s privacy is protected. To minimize the risk, Michigan residents ought to be aware of people like Ellen and be very careful about making personal identifying information publicly available. E. Identity Theft and False Police Reports Ian runs up $4,500 in credit card bills that he cannot pay. In an effort to get the collection agencies off his back, and with the hope of getting more credit, he files a police report claiming to be a victim of identity theft. Is this an easy way to get out of debt, or is this a crime? Under Michigan law, a person shall not “[f]alsify a police report of identity theft, or knowingly create, possess, or use a false police report of identity theft.” 144 This offense is punishable by up to five years in prison plus a $25,000 fine. 145 Obviously, a prosecutor could consider felony charges against Ian. Someone like Ian might want to file a false police report claiming to have been a victim of identity theft because both federal law and Michigan law give identity theft victims certain relief and rights. 146 These rights include approving credit to a consumer even though “the consumer was a victim of identity theft, if the person had prior knowledge that the consumer was a victim of identity theft.” 147 IX. VIDEO VOYEURISM After wrestling practice at the local public high school, Ben uses his cell phone camera to take a photo of Mark while Mark is on the toilet in a locker room stall. Ben knows that the door on the stall sometimes does not 143. Id. § 445.67(b). 144. Id. § 445.67(c). 145. Id. § 445.69(1). 146. See id. § 445.71. 147. Id. Winter 2010] MICHIGAN HIGH-TECH OFFENSES 261 lock, so he pushes it in and photographs Mark with his pants and underwear at his ankles. Is this a funny prank or a criminal act? Michigan law criminalizes photographing a person in one’s “undergarments” or without clothes “under circumstances in which the individual would have a reasonable expectation of privacy.” 148 This part of the statute is silent regarding the necessary mental state that a defendant must have in order to be charged with this offense. The law also prohibits, as a separate charge, the distribution of such a photo if “the person knows or has reason to know [that the photo] was obtained in violation of this [law].” 149 This offense is punishable by up to five years in prison. 150 Notably, merely observing 151 the victim secretly, regardless of whether the victim is photographed, is punishable by up to two years in prison. 152 The law does not require that the photos be sexually provocative in nature; the only requirement is that the victim be in his or her undergarments or exposing “unclad genitalia or buttocks” or the “unclad breasts of a female.” If the photos were sexually provocative, the defendant might also be facing charges under a “child sexually abusive material” statute.153 Therefore, it looks like Ben could face criminal charges for his nasty locker room prank of photographing Mark in his undergarments. Despite the fact that the conduct occurred at the public high school (where a student’s reasonable expectation of privacy is, generally, not high),154 Mark seems to have a “reasonable expectation of privacy” in that he was in the stall by himself with the door closed. It is quite possible, maybe even probable, that a prosecutor would choose not to prosecute Ben for his conduct. But is this a risk worth taking in order to have some fun? How will the prosecutor act when Mark’s angry parents demand that Ben be prosecuted for his offensive conduct? 148. Id. § 750.539j. Can one set up a video-surveillance security system at one’s own home? Section 750.539j(4) “does not prohibit security monitoring in a residence . . . unless conducted for a lewd or lascivious purpose.” (emphasis added). 149. Id. § 750.539j(1)(c). 150. Id. § 750.539j(2)(a)(ii). 151. Section 750.539j(1)(a) makes it a crime to “[s]urveil another individual who is clad only in his or her undergarments, the unclad genitalia or buttocks of another individual, or the unclad breasts of a female individual under circumstances in which the individual would have a reasonable expectation of privacy.” The statute further provides that to surveil “means to secretly observe the activities of another person for the purpose of spying upon and invading the privacy of the person observed.” Id. §§ 750.539a(3), 750.539j(6). 152. Id. § 750.539j(2)(a)(i). 153. Id. § 750.145c; see also supra notes 47–83 and accompanying text. 154. See Bd. of Educ. v. Earls, 536 U.S. 822, 832 (2002) (finding that students have a “limited expectation of privacy”); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995) (“Legitimate privacy expectations are even less with regard to student athletes.”); New Jersey v. T.L.O., 469 U.S. 325, 348 (1985) (“[S]tudents within the school environment have a lesser expectation of privacy than members of the population generally.”). 262 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 The mere fact that a prosecutor would consider prosecution 155 should be enough to motivate one to put the camera away. X. EAVESDROPPING Tom attaches a small recording device to the bottom of a table in a private conference room where he knows that Robyn and the school principal are going to have a serious conversation. He successfully records the conversation and shares it with his friends for a laugh. Are Tom’s actions deemed criminal conduct under Michigan law? Under a Michigan law passed in 2004, a person shall not “[i]nstall, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.” 156 The legislature defines “private place” as “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access.” 157 The private conference room where Robyn and the principal had the conversation likely satisfies this definition; certainly, it is a place where one might “reasonably expect to be safe from casual . . . intrusion” and is not a location where a “substantial group of the public has access.” 158 Violation of this law is punishable by up to two years in prison. 159 Notably, because Tom shared the recording of this conversation with his friends, he could actually face an additional charge—punishable by up to five years in prison—for disseminating the recording. 160 Michigan law provides that a person shall not “[d]istribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation” of the law. 161 155. See Julie Morrison, Holly Police Turn Investigation of Cellphone Videos Taken of Girls in Holly High School Locker Room over to Oakland County Prosecutor, MLIVE.COM (Feb. 11, 2009, 9:30 AM), http://www.mlive.com/news/flint/index.ssf/2009/02/holly_police_turn_investigatio.html (“A 16-year-old student at Holly High School climbed into the ceiling over the girls’ locker room and taped six cellphone videos over a three-day period.”). 156. MICH. COMP. LAWS ANN. § 750.539d (West Supp. 2010). 157. Id. § 750.539a(1). 158. Id. 159. Id. § 750.539d(3)(a)(i). 160. Id. § 750.539d(3)(b). 161. Id. § 750.539d(1)(b). The required mental state as provided by the Michigan legislature—if “the person knows or has reason to know [the recording] was obtained in violation of this section”—raises an interesting question. As a general rule, everyone is assumed to “know the law.” See, e.g., United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971); People v. Marrero, 507 N.E.2d 1068, 1069 (N.Y. 1987). In other words, mistake of law is not a defense. The language of the statute, however, seems to Winter 2010] MICHIGAN HIGH-TECH OFFENSES 263 However, what if the conversation is between two friends alone at a table in the cafeteria of the local public school? This location does not appear to be a “private place,” as it is not a location where one can “reasonably expect to be safe from casual intrusion.” Does the prosecutor have an alternative argument? An eavesdropping statute has been available to Michigan prosecutors since 1967.162 This eavesdropping law states that “[a]ny person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties” is guilty of a felony punishable by up to two years in prison. 163 The law states that to “eavesdrop” means to “overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse.” 164 This older statute does not appear to be limited by the “private place” requirement of the newer statute criminalizing eavesdropping. Assuming a prosecutor could establish that it was a “private conversation,” whether it occurred in a private place is not a concern under this statute. As such, it appears that the prosecutor could charge Tom even if he was merely recording a conversation between two friends in the cafeteria. 165 One might think that a prosecutor should not be able to use the older statute on eavesdropping because the newer statute on the same subject effectively replaces it. To that argument, the legislature states the following: “This [law] does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate [this law].” 166 In other words, both statutes are potentially available to the prosecutor. require knowledge of the law as a statutory requirement. As such, a defendant’s argument that he “did not know it was against the law” seems directly relevant in evaluating whether a prosecutor has satisfied the required burdens of proof for a conviction under this section. 162. MICH. COMP. LAWS ANN. § 750.539c (West Supp. 2010). 163. Id. 164. Id. § 750.539a(2). 165. What if Tom merely recorded his own conversation with the principal? In Sullivan v. Gray, the court held that, under this statute, a party to a telephone conversation can record his own conversation without the consent of the other party. 324 N.W.2d 58, 60 (Mich. Ct. App. 1982). The court reasoned that “the statutory language, on its face, unambiguously excludes participant recording from the definition of eavesdropping by limiting the subject conversation to ‘the private discourse of others.’ Id. The statute contemplates that a potential eavesdropper must be a third party not otherwise involved in the conversation being eavesdropped on.” Id. 166. MICH. COMP. LAWS ANN. § 750.539d(4) (West Supp. 2010). 264 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 XI. HACKING 167 A. Unauthorized Access to a Computer System George wants to know if a private college accepted him, so he uses his high school’s computer system to determine his acceptance status. George figures out how to peek inside the private college’s computer system and finds out that he is accepted! In the process, he causes no damage to the computer system of either school. Do George’s actions constitute a Michigan crime? Michigan law prohibits a person from “intentionally and without authorization or . . . exceeding valid authorization” to access “a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the services of a computer program, computer, computer system, or computer network.” 168 This offense is punishable by up to five years in prison, regardless of any amount of loss. 169 In other words, damage to the computer or computer system is not necessary for the law to apply; one needs only to “use the service” to face a five-year felony. The statute does not define “without authorization” or “by exceeding valid authorization.” The fact that the statute uses both terms suggests that the Michigan legislature intended to permit prosecution of both outsiders (wholly “unauthorized”) who intentionally access a system as well as insiders who exceed “valid authorization” to use the system. When is access “without authorization”? When does an authorized user exceed his or her “valid authorization”? These are questions of fact for a jury to answer.170 In determining whether George has exceeded his valid authorization to use his high school’s computer system, the court will likely look to the school’s computer usage policies or banners that are in place. Similarly, whether George was without authorization to enter the private college’s system will depend on the steps that George had to take to get into the 167. Hacking, INTERNET SECURITY SYSTEMS, http://www.iss.net/security_center/advice/Underground/Hacking/default.htm (last visited Mar. 8, 2011). The word “hacking” has two definitions. The first definition refers to the hobby/profession of working with computers. The second definition refers to breaking into computer systems. While the first definition is older and is still used by many computer enthusiasts (who refer to cyber-criminals as “crackers”), the second definition is much more commonly used. Id. 168. MICH. COMP. LAWS ANN. § 752.795(a) (West 1997). 169. Id. § 752.797(2). 170. See, e.g., People v. Brunk, No. 273858, 2008 WL 376421, at *1 (Mich. Ct. App. Feb. 12, 2008) (holding there was insufficient evidence to prove defendant was not authorized to download software from state network due to unclear policy). Winter 2010] MICHIGAN HIGH-TECH OFFENSES 265 system (e.g., did he have to use someone else’s password or engage in some other clandestine conduct?) and on notices created by the private college to warn outsiders of what is not permissible within its system. Depending on how these factual issues are resolved, George might face two separate computer-access charges with two different victims—his high school and the private college. Teens have been, and will be, prosecuted for hacking into a school’s computer system. 171 B. Unauthorized Access to Another’s WiFi Computer System After school, seventeen-year-old Harold brings his laptop with Wi- Fi 172 capacity to Jim’s house. Jim’s computer is not working, and Jim and Harold need to obtain information from a website. Harold takes his computer into the backyard and turns on his computer to search for a wireless computer system that he can use to access the Internet. He finds that the neighbor two houses away has left his wireless system insecure and that he can access the Internet through the neighbor’s system. Without asking the neighbor for consent, Harold uses the neighbor’s Internet access, obtains the information he needs, and they continue with their homework. Do Harold and Jim’s actions constitute a Michigan crime? Is accessing someone else’s wireless Internet connection to surf the Internet a problem under the law? Once again, Michigan law addresses this situation. Michigan law prohibits a person from “intentionally and without authorization or by exceeding valid authorization” accessing a “computer network” to “otherwise use the service[s] of a . . . computer network.” 173 Certainly, Harold “accessed” a “computer system.” He did it “intentionally”—he did not access the Internet by mistake or accident. The only real legal issue is whether Harold’s access was “unauthorized” or whether he “exceeded valid authorization.” Seemingly, he was not authorized to use the neighbor’s system. Just because, technologically, Harold can get into the neighbor’s system does not mean that he is authorized to use the neighbor’s system. One might argue that the neighbor effectively “authorized” others to use the system because the neighbor did not adequately secure the wireless network. For assistance in reviewing this argument, it helps to think about 171. See Dick Kelsey, Two Teens Face Hacking Charges in Michigan, NEWSBYTES (Sept. 14, 2000) (on file with author). According to data on Michigan courts compiled by the Judicial Data Warehouse, prosecutors have not often used this felony charge against juveniles. Prosecutors have, however, filed numerous misdemeanor charges that arguably could cover similar conduct. See supra note 117. 172. Definition: Wi-Fi (wireless fidelity), SEARCHMOBILECOMPUTING.COM, http://searchmobilecomputing.techtarget.com/definition/Wi-Fi (last updated July 2002) (“Wi-Fi (short for ‘wireless fidelity’) is a term for certain types of wireless local area network (WLAN) that use specifications in the 802.11 family.”). 173. MICH. COMP. LAWS ANN. § 752.795(a) (West 1997); see also supra note 168 and accompanying text. 266 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 some more traditional crimes like automobile theft or home invasion. Is it not automobile theft if the victim leaves the car door unlocked and the keys in the ignition? Is it not home invasion if the homeowner leaves his front door unlocked? 174 In general, our criminal law system has not required the victim to fully secure the car or the house before a defendant is facing the crimes of automobile theft or home invasion. 175 Similarly, as a legal matter, whether the access to the neighbor’s computer system is unauthorized should not depend on whether the system is fully secured. What if the neighbor does not care who accesses the Internet using his wireless system? While certainly relevant to whether a prosecutor will succeed in the prosecution of a case, the laws generally do not require the victim to agree to the prosecution.176 Violation of the criminal laws affects the general public, giving a prosecutor adequate reason to consider bringing charges regardless of the victim’s desires. Will a prosecutor bring this type of charge? In 2007, a Michigan resident was charged with unauthorized access to a computer system for accessing the wireless network of a coffee shop while he sat in his car in the coffee shop parking lot. 177 The court issued a $400 fine and ordered the man to perform forty hours of community service. 178 The lesson here is that the law does criminalize this type of conduct, and a prosecutor could exercise his discretion to bring charges. Is this a risk worth taking then? C. Unauthorized Insertion of a Computer Program Fred and George are roommates at a public university. Both have their own personal computers. Out of jealousy, Fred decides to insert a “parental-controls” program into George’s computer that allows Fred to review—on Fred’s own computer—what George is doing online. Does Michigan law address this conduct? Does Michigan have a “spyware” 174. Under our country’s common law tradition, “the opening of a door or window which was closed but not locked in any way was a sufficient breaking” for purposes of the crime of burglary. WAYNE R. LAFAVE, CRIMINAL LAW § 21.1(a), at 1018 (4th ed. 2003). 175. “Negligence by the victim, just as with criminal conduct by the victim, ‘does not bar an action against another for the wrong which he has committed against the peace and dignity of the state.’” Id. at 363–64 (quoting People v. Tims, 534 N.W.2d 675 (1995)). 176. Id. at 364. While before-the-fact consent may negative an element of the offense or preclude infliction of the harm to be prevented by the law in question, this is not true of subsequent condonation. Such forgiveness “has no proper place in the criminal law. The interest of the state is paramount and controls prosecutions . . . [f]or it is the public, not a complainant, that is injured by the commission of a crime.” Id. (quoting People v. Brim, 199 N.Y.S.2d 744, 748 (1960) (internal citations omitted)). 177. John Cox, Michigan Man Fined for Using Free Wi-Fi: He Had Been Checking E- Mail Using Local Cafe’s Wireless System, NETWORK WORLD (May 23, 2007, 4:37 PM), http://www.networkworld.com/news/2007/052307-fine-using-free-wifi.html. 178. Id. Winter 2010] MICHIGAN HIGH-TECH OFFENSES 267 statute? 179 Michigan law prohibits a person from “intentionally and without authorization” inserting, attaching or knowingly creating or “exceeding valid authorization” to insert or attach or knowingly create the opportunity for an unknowing and unwanted insertion or attachment of a set of instructions or a computer program into a computer program, computer, computer system, or computer network, that is intended to acquire, alter, damage, delete, disrupt, or destroy property or otherwise use the services of a computer program, computer, computer system, or computer network. 180 This offense is punishable by up to five years in prison regardless of any amount of loss or damage. 181 While it is clear that George consented to being roommates with Fred, there is no indication that he agreed to the installation of a program that would allow Fred to see what George is doing online. As such, it appears to be an “unknowing and unwanted insertion” of a computer program to “otherwise use the services” of the computer.182 Fred knew what he was doing, and it appears that he was not authorized to use George’s computer. 183 D. Using a Computer to Commit Fraud 184 In an effort to raise money for college, Tom uses his home computer to sell some old computer parts and software on eBay. In describing the items, he leaves out some facts, including that the equipment/software only functions in a Windows 98 environment. Is this a crime? Under Michigan law, a person shall not intentionally access or cause access to be made to a computer program, computer, computer system, or computer network to devise or execute a scheme or artifice with the intent 179. In both 2005 and 2007, Michigan legislators introduced bills intended to criminalize the installation of spyware on another person’s computer without consent. See S.B. 144, 2007–08 Leg. Sess. (Mich. 2007); S.B. 54, 2005–06 Leg. Sess. (Mich. 2005). Likely due to the existence of Michigan Compiled Laws Annotated section 752.795(b), neither bill became law. 180. MICH. COMP. LAWS ANN. § 752.795(b) (West 1997). 181. Id. § 752.797(2). 182. Id. § 752.795(b). Arguably, it might also be deemed acquiring “property” under the statute. See id. 183. Had George occasionally let Fred use his computer, the inquiry would instead be whether Fred exceeded his valid authorization. 184. For a discussion on practical issues a prosecutor might face in prosecuting an Internet fraud case, see Patrick E. Corbett, Prosecuting the Internet Fraud Case Without Going Broke, 76 MISS. L. J. 841 (2007). 268 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 88:237 to defraud or to obtain money, property, or . . . [a] service by a false or fraudulent pretense, representation, or promise. 185 The penalty for this offense is tied to the value of the “money, property, service.” 186 For example, if the fraud “involves an aggregate amount of $1,000.00 or more but less than $20,000.00,” the crime is punishable by up to five years in prison. 187 Under Michigan law, “[a]ggregate amount” means any direct or indirect loss incurred by a victim or group of victims including, but not limited to, the value of any money, property or service lost, stolen, or rendered unrecoverable by the offense, or any actual expenditure incurred by the victim or group of victims to verify that a computer program, computer, computer system, or computer network was not altered, acquired, damaged, deleted, disrupted, or destroyed by the access. The direct or indirect losses incurred in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total value of the loss involved in the violation of this act. 188 Significantly, allowing aggregation of loss gives the prosecutor broad authority (if he can find multiple victims or multiple instances of fraud against a single victim) to convert this fraud from a misdemeanor into a felony. Assuming the prosecutor can prove Tom acted “with the intent to defraud or to obtain money, property, or a service by a false or fraudulent pretense, representation, or promise,” 189 Tom may face felony charges for his college-funding actions. Is there perhaps a better way to raise money for college? XII. EVEN IF NOT PROSECUTED, MICHIGANDERS COULD FACE OTHER PROBLEMS Without a doubt, the decision to criminally prosecute a teen or a seemingly “innocent” adult is not an easy one to make. As elected officials, many prosecutors experience intense pressure from their constituents. In the cyberbullying context, for example, the prosecutor may be riddled with requests from parents of teen victims demanding that another teen be prosecuted for his or her online conduct. Choosing to prosecute a young adult for this type of conduct has serious potential 185. MICH. COMP. LAWS ANN. § 752.794 (West Supp. 2010). 186. Id.; see also id. § 752.797(1)(b)(ii) (explaining that the penalty could also be worse if the person has a “prior conviction”). 187. Id. § 752.797(1)(c)(i). 188. Id. § 752.792(2). 189. Id. § 752.794. Winter 2010] MICHIGAN HIGH-TECH OFFENSES 269 consequences on his or her future. This raises the question of whether there is a better alternative. While it remains to be seen whether there is a better choice, alternatives clearly exist, as do alternative consequences. Teens can be suspended or expelled from school. 190 Schools might use criminal laws similar to those discussed in this Article as a basis for choosing to suspend or expel. In light of the role of schools as temporary guardians of kids, it would not be surprising if schools act aggressively in addressing perceived wrongs by students. 191 People could be denied admission to a school 192 or even a job. 193 The victims could even file civil lawsuits claiming damages. 194 In all instances, an apparent violation of one of the criminal laws—even if no charges are actually filed—could strongly support an alternative negative consequence.195 CONCLUSION People are looking at what others are doing online: a victim’s parent contemplating a lawsuit, a school considering expulsion, law enforcement looking to force a change in behavior, or a sexual predator or fraudster looking for an easy victim. All individuals need to know or be reminded that there are consequences to choices made online. It is best to assume that no digital communication is ever private. One’s words can be used in a variety of unintended ways. We all play a role in making the Internet and high-tech devices safe for each other: teens, parents, educators, law enforcement, and the general public. People need to be aware of the happenings in the online world and the potential consequences of offensive, inappropriate, or illegal conduct online. More information and greater awareness will not only lead to more responsible usage of the many high-tech devices available today, but also to a safer online world for all. 190. See, e.g., School Suspends 20 over MySpace Posting: Calif. Middle-School Student Faces Expulsion over Alleged Threat on Web Site, MSNBC.COM (Mar. 3, 2006, 11:37 AM), http://www.msnbc.msn.com/id/11649424/.com?lnk=lr; Kids with Booze Busted by Blogs, MLIVE.COM (Feb. 10, 2006), http://www.universitybusiness.com/newssummary.aspx ?news=yes&postid=10531. 191. See Jan Hoffman, Online Bullies Pull Schools into the Fray, N.Y. TIMES (June 27, 2010), http://www.nytimes.com/2010/06/28/style/28bully.html?hp. 192. See Harvard Snubs 119 Cyber-Snoop Applicants, CHINA DAILY (Mar. 9, 2005, 2:03 PM), http://www.chinadaily.com.cn/english/doc/2005-03/09/content_423352.htm. 193. See supra note 10 and accompanying text. 194. See supra note 11 and accompanying text. 195. See, e.g., Martinez v. Mueller, No. 266200, 2006 WL 1115534 (Mich. Ct. App. Apr. 27, 2006) (plaintiff-employee who was terminated for inappropriate email usage brought civil claim against co-worker, alleging the co-worker tortiously interfered with plaintiff’s contract due to co-worker’s alleged violation of Michigan’s computer crime statute, MICH. COMP. LAWS ANN. §§ 752.791–752.797 (West Supp. 2010)).
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