Theft of “computing power”! What does the law say?

With the booming of the digital economy, the term “computing power” has entered people’s mind.

Theft of "computing power"! What does the law say?

With the booming digital economy, the term “arithmetic” has entered people’s minds. In the early days, arithmetic was the unit of measurement for the processing power of virtual currency networks such as Bitcoin, i.e., the speed at which a computer could calculate the output of a hash function. Later, the term arithmetic was gradually expanded to include computing power in the era of big data. While the past 20th century was the age of electricity characterized by electrification, in the information network era, arithmetic power gradually became a new productivity feature as computing power jumped up. It can be said that the theft of computing power in the information network era is like the theft of electricity in the electrical era – both are acts of illegal appropriation of the mainstream means of production. However, while the theft of electricity has been more clearly characterized by criminal law (despite the academic distinction between theft and fraud), the theft of computing power is foggy in comparison. Legislation does not specifically regulate the theft of computing power. A search of the Internet for the keywords “theft” and “computing power” did not reveal any scholarly discussion on the subject. Judicial practice is always ahead of legislation and scholars. As early as 2019, in a real judgment [(2019)京0108刑初80号], the court has tried to regulate the theft of arithmetic power by criminal law.

Brief description of the case
From April 2018 to the present, An used the iterm software on the Apple computer issued to him by the company to operate the central control machine that could control all servers, and then uploaded mining scripts through the central control machine and issued bulk download instructions through the iterm software, allowing more than 200 servers to download the mining scripts. The mining script can upload a company’s computing resources to the hash site, which mines Monroe coins through its uploaded computing resources, and finally settles with it in bitcoins according to the amount of computing resources it uploads. It withdraws bitcoins from the hash site to the website, then sells the bitcoins through this website for about 100,000 RMB, and finally the person who bought its bitcoins transfers the money to its Alipay account.

The verdict
The court held that, according to the evidence on file, it can be confirmed that the defendant Anmou used his work convenience as an operation and maintenance engineer in a company, beyond the work authority given to him by a company, against the will of a company, through the unauthorized implantation of a program that can control a company’s server this technical means, to achieve the purpose of occupying a company’s server computing resources, using computing resources for profit, its control means have the illegality of It is self-evident. Anmou has the circumstances of truthful confession, combined with its ability to surrender the illegal proceeds involved, so the court to its lighter punishment. In summary, the court sentenced An to three years’ imprisonment and a fine of RMB 11,000 yuan for the crime of illegal control of computer information system.

Illegal control of computer information system
In this case, An Mou implanted the program to achieve the purpose of “stealing” the company’s computing power for his own use. The court ruled that An was guilty of unlawful control of computer information systems, mainly because of the characteristics of An’s implanted program and control system. China’s Criminal Law, Article 285, paragraph 2, provides that, in violation of state regulations, intrusion into the computer information system other than the provisions of the preceding paragraph or the use of other technical means …… to implement illegal control of the computer information system, the circumstances are serious, shall be sentenced to fixed-term imprisonment of less than three years or detention, and a fine or a single fine; the circumstances are particularly serious, shall be sentenced to If the circumstances are particularly serious, the penalty shall be imprisonment for a fixed term of not less than three years and not more than seven years, and a fine. (Omitting the part of the crime of illegal access to computer information system data) In terms of this crime.

First, the crime is an administrative offense and requires a violation of the predicate law “national regulations”, which is not difficult to find compared to other crimes involving virtual currency. For example, Article 27 of the Network Security Law stipulates that no individual or organization may engage in activities that endanger network security, such as illegally intruding into another’s network, interfering with the normal function of another’s network, or stealing network data.

Second, the crime has a certain threshold of incrimination, need to reach the “seriousness of the circumstances” to be criminalized, according to the “Supreme People’s Court, the Supreme People’s Procuratorate on the handling of criminal cases endangering the security of computer information systems, the application of the law of the interpretation of Article 1, the “seriousness of the circumstances” refers to

(a) access to payment and settlement, securities trading, futures trading and other network financial services authentication information more than ten groups.

(B) access to identity information other than (a) more than five hundred groups of authentication information.

(C) illegal control of computer information systems more than twenty units

(D) illegal income of more than five thousand dollars or cause economic losses of more than ten thousand yuan.

(E) other circumstances of seriousness.

And “particularly serious circumstances” refers to the number or amount of the preceding paragraph (a) to (d) more than five times the standard or other circumstances are particularly serious.

In this case, Anmou illegal income of 100,000 yuan, has constituted a “particularly serious circumstances”, can be sentenced in the sentencing range of three to seven years, the court has taken the most lenient sentence.

In analogy to this case, if an individual’s computer is hijacked by the suspect’s malicious program to “mine” the computing power, as long as the illegal income (virtual currency sold) is more than five thousand dollars, it can constitute the crime.

Can theft of computing power constitute the crime of theft?
Although the crime of unlawful control of computer information systems can play a role in regulating the theft of computing power, the legal benefit it protects is the security of computer information systems, not a property crime. With the crime of theft of computing power to the act of regulation is far less than the theft of electricity constitutes theft that. Therefore, it is worthwhile to continue our discussion on the question of whether the theft of computing power can constitute the crime of theft like the theft of electricity.

In terms of the object characteristics of theft, computing power can constitute property for the purposes of criminal law. First of all, we can control computing resources through servers for different tasks as we wish, so arithmetic power has management possibilities. Secondly, although the server on which the arithmetic is based is not “transferred” in the physical space, the arithmetic can be transferred to other servers in the information network space to carry out the work, so the arithmetic has the possibility of transfer. Finally, in the information network era, we often pay for the ability to deploy more arithmetic power, and arithmetic power, as a new type of production material, has objective economic value and should be protected by criminal law. To take a step back, the generation of arithmetic power itself means the consumption of electricity and the loss of servers, and there is no problem of common sense in identifying it as property.

As far as the behavioral characteristics of theft are concerned. First, the theft of arithmetic power excludes the victim’s domination of computing resources and establishes a new dominant relationship, such as the above-mentioned case, a company’s computing resources were transferred to a hash site for “mining”; second, the theft of arithmetic power often violates the will of the victim, as mentioned above, the generation of arithmetic power itself implies the consumption of electricity, server losses, the victim’s arithmetic power. As mentioned above, the generation of arithmetic power itself implies power consumption, server loss, and even if the victim’s arithmetic power is idle, it does not mean that it promises to use it for other purposes at will.

Since the theoretical theft of computing power can be considered to constitute the crime of theft, why are there few such direct judgments in practice? This should be related to the issue of determining the value of computing power. If the value is not determined properly, it will be difficult to constitute the crime of theft. With reference to electricity, which is also an inanimate object, the amount of theft of electricity can be calculated according to the verified quantity and the electricity fee, but there is no fair price for the arithmetic power. In this regard, there are two solutions: first, the amount of theft is indirectly determined according to the consumption of electricity and the loss of servers; second, the amount of theft is determined according to the amount of virtual currency generated or the amount of stolen money in the case of “theft of computing power mining”. In addition, the special theft crime of “multiple theft” does not have the requirement of “large amount”, so even if the value of the computing power is currently difficult to determine, the suspect should be considered to belong to the “multiple theft of computing power” if he has repeatedly carried out the theft of computing power. The crime of theft should be considered as “multiple theft”.

The number of crimes of theft of computing power
In terms of the number of crimes, the theft of arithmetic is a natural act of singularity, that is, the actor through the same kind of behavior of multiple actions to achieve the kind of will to obtain a single result in the external world. Specifically, firstly, the act has only one singular will, i.e., the theft of arithmetic; secondly, although there are multiple actions to steal arithmetic by implanting programs and uploading arithmetic, they all belong to the same kind of act in the information network; thirdly, the above multiple actions are closely connected in space and time; finally, in the natural observation method of a third person, the theft of arithmetic by controlling a computer system is like opening a wallet and stealing money Finally, in the natural third-person observation method, the theft of computing power by controlling a computer system, like opening a wallet and stealing a bill, is identifiable as a composite singular act. (For the natural theory of the singular number of acts, see [German] Klaus Röcksing, General Theory of German Criminal Law, vol. 2, translated by Wang Shizhou, Law Press, 2003, p. 607.)

Therefore, the theft of computing power is a single act against several legal interests, which meets the criminal elements of several crimes, and there is no connection between the several crimes, which constitutes an imaginary competition between the crime of illegal control of computer information system and the crime of theft, and one felony should be chosen for punishment.

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