Computer trespass

Data change is in Germany according to § 303a of the Criminal Code (StGB ) an offense which is punishable with imprisonment up to two years or a fine.

Definition

Any unlawful alteration, deletion, suppression or mutilation of foreign data is a data change after the German criminal law.

Wording

The wording of § 303a StGB ( since the last change August 11, 2007):

( 1) Whoever unlawfully data (§ 202a para 2 - spying out data ) deletes, suppresses, unusable or altered, shall be punished with imprisonment up to two years or a fine.

( 2) The attempt shall be punishable.

( 3) § 202c shall apply mutatis mutandis to the preparation of an offense referred to in paragraph 1.

Acts constituting the offense

Delete is the irretrievable garbling of data, ie the data is not recoverable. From suppression occurs when the holder access was impossible on its data. Disablement means that data can not be used as intended. A modification of data exists when changes its information content.

Constituent elements of

The Standard covers substantive changes to data. The offense is complete as soon as a successful action has occurred. Of economic loss is not required. This must not be of foreign data, but data are subject to a third party licensors. Thus, the data change is pursuant to § 303a StGB in pure internal area is not possible when the agent due to its legal position had full access to the modified data. Are protected only those data which are assigned to another. A criminal offense is available only if the actions of the perpetrator refers to external data, to which, therefore, is the immediate right of others to processing, erasure or use. The condition of illegality is void if the perpetrator is authorized to dispose of or acting with the consent of the person entitled to the data. As such, the use permit acts on the data as tatbestandsausschließendes consent.

Criminal complaint

In accordance with § 303c StGB action followed in the cases of § § 303 to 303b StGB only on request, unless the law enforcement agency holding because of the particular public interest in prosecution that intervention of its own motion offered. If a request is made, the law enforcement agency collects but also only charges when it affirms a (simple ) public interest ( § 376 Code of Criminal Procedure ). Otherwise, the injured party has the opportunity to bring a private prosecution ( § 374 para 2 CCP).

Recorded offenses in the police crime statistics ( § § 303a, 303b of the Criminal Code )

In the German police crime statistics ( PKS) in 2008 a total of 2,207 offenses of data modification or computer sabotage were recorded. The number of cases of recent years the diagram (PKS 2003 - 2008) are removed.

The computer crime outweigh male adult suspects 21 years.

On the basis of statistics ( PKS Sentenced statistics, etc. ) can not determine the exact extent of the offenses. Due to different recording periods / data and other factors, these statistics are not comparable to Germany.

Criticism

In the law, the rule has been designated as a criminal offense " for no apparent injustice core ".

In the opinion of the Federal Council on the draft amendment to the Criminal Law to combat computer crime was alleging that § 303a StGB is often criticized for its considerable uncertainty (Art. 103 II GG). The uncertainty relates for example to to the question of what the right of disposal is to moor about data. Especially with data in networked systems, this problem is largely unknown. This concerns about the constitutionality of the norm can be derived. However, it seems questionable whether the legislature is currently in a position to solve the problem. In the legal literature has been able to enforce no approach clearly, and for legal practice appears to play no major role the problem.