On Crimes Concerning Spyware

Internet brings the human beings not only unprecedented convenience but also troubles. The dual character of internet intensively reflected by spyware.Based on this kind of character,users of computer may promise to the harm caused by the spyware, in purpose to acquire the right of using the powerful tool software that embed in the spyware.This kind of promise may constitute the ground for elimination of misfeasance and we will feel confused about whether to criminalize the spyware.When we turn our focus away from spyware deep into the issue of protecting the right to privacy of personal data, We will find the deficiency in relative regulation of the criminal law of our country.The purpose of this article is to introduce the basic information of spyware,analyse the constitutive requirements of the victim' promise in crimes committed with the help of spyware, discuss whether or not to criminalize the activity infringing upon the right to privacy on personal data badly and the activity making or disseminating spyware intentionally and bring up the suggestions on perfection of the relative regulation of criminal law in the following 3 chapters.Chapter 1 summarizes the spyware from defination, classification and characteristic. The author agrees with the way of H. R. 2929 U.S ,which defines spyware as a neutral software, after analysing the definition given by the internet community, H. R. 2929 U.S and Spyware Regulation 2004 General Session State Of Utah comparatively, then emphasizes on the dual character of spyware in purpose of preparing for bringing forward suggestions on perfections of criminal law.Chapter 2 discusses the grounnd for elimination of misfeasance in crimes committed with the help of spyware.There's always a notice about potential infringement to the users'computer given in the installation agreement of spyware.It looks like that the subsequent infringement has gained the promise of the users if the users click the button of acceptance.After a summerization of the theroy of the ground for elimination of misfeasance,the author analyses the constitutive requirements of the victim' promise in crimes committed with the help of spyware from perspectives of the capacity ,the right,the reality,the time,the manner and the propriety of promise.Chapter 3 gives the suggestions on perfection of criminal law of our country.Although some regulations of the criminal law of our country looks like out of time when facing to some badly infringment brought by the internet,we need to perfect them prudently.The author,in this chapter,suggests that we should criminalize the activity infringing upon the right to privacy of personal data badly but not the activity making or disseminating spyware intentionally by analysing from the perspective of the principle of modesty of criminal law.Then the author analyses the major three kinds of criminal legislative mode relative to the right to privacy of personal data in the world comparatively ,suggests that we assimilate the strength of each mode and adopt a gradual mode.The detailed suggestions on perfection of criminal regulation relative to the right to privacy of personal data are brought forward finally.