by Robert Laws

Created on: September 25, 2009

To answer this question, we need to look at what a computer virus is and the reasons they are written. There appears to be much confusion over the differences between a virus, computer hacking, spyware and other forums of cyber penetration.

A computer virus is software that can replicate itself and spread (like a human virus) from one system to another. This definition alone would include many legitimate software solutions, developed to provide needed functionality, especially in the world of clustered servers and 'cloud computing'. I therefore believe the definition of a computer virus should include that it replicates without consent.

With this definition in mind, a computer virus does not include people hacking into government or banking systems and it does not include hackers using known vulnerabilities in software to take direct control of a computer or steal information from a computer (although a virus could help in these cases).

A computer virus may be completely harmless. It may be a small piece of software that simply displays a message promoting the 'talents' of its author. However, most viruses are more dangerous, covertly gathering information, providing a means for a hacker to access a system or sabotaging a system (usually by deleting files or overloading a system).

I believe anyone writing a computer virus, as defined above, is committing a crime. Even in the case of a harmless virus, where someone has found a way into a system to leave their program, which will replicate a message. This is akin to finding a window open in a house and climbing through to leave messages on the walls and rearrange the fridge magnets. Although this case may seem more of a prank than a cause of true harm, it is still an unwanted intrusion into someone else's property and still requires a clean-up exercise.

In the case of more severe viruses, which can help steal identities, break into bank accounts, cause loss of data, bring down online services or even cause physical damage to computing components (in rare cases), there is a much clearer criminal intent.

As with any type of crime, the punishment should be consistent with the severity of the crime and that often relies heavily on the intent. In some mild cases, it may be determined that a virus writer had no intent to cause harm, was unaware of the implications of his/her actions and the misdirection of their talents should not be punished with jail time. In most cases, I believe jail would be an appropriate punishment for a crime that is at least as severe in the impact on its victims as other crimes that receive jail time.

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