The criminal justice system has always faced the dilemma of what to do when those who break the law are minors, and thus in many ways not legally responsible for themselves. Traditionally, underage offenders have been treated differently and kept separate from adult criminals. In many jurisdictions, a separate juvenile justice system exists, with its own courts and detention facilities (which are not called jails or prisons) and its own rules of procedure. Juveniles are not "arrested," they're "taken into custody." The focus is on rehabilitation rather than punishment.
The juvenile justice system
The treatment of young people who break the law varies, in the U.S., from one state to another, and so does the definition of who is a "juvenile." In Texas (where I live), a juvenile is someone who is at least 10 years old but under 17 years of age at the time he/she committed an unlawful act. We don't even call it a "crime" because juveniles (with some exceptions) aren't charged under the criminal statutes. We call it "delinquent conduct" (an act that would result in jail or prison if committed by an adult) or "conduct in need of supervision" (an act that would result in a fine if committed by an adult, as well as acts that are not illegal if committed by adults - e.g., running away from home or skipping school).
Juveniles who are "adjudicated" (we don't say "convicted" either) for delinquent conduct can be confined in a special Texas Youth Commission facility or placed on probation. If a 15- or 16-year-old commits an especially serious offense or is a repeat felony offender, the court can certify the juvenile to stand trial as an adult. In that event, the case is transferred to the regular criminal court system. The cases of 14-year-olds (at the time of the offense) can also be transferred in certain cases such as first degree and capital felonies.
You'll notice that children younger than 10 don't fall under the jurisdiction of the Texas juvenile justice system. They are considered to be too young to be held responsible for their actions.
Kids and computers
Everyone knows that kids generally take to computers more quickly and easily than their elders. Today's children grow up with access to computers - and not just standalone computers but computers that are networked to the rest of the world through the Internet. Many of them love to explore and experiment, as children have always done; that's an important element in learning. Unfortunately, that exploration and experimentation can lead them to virtual "places" that are legally off limits, and turn them into criminals (or juvenile delinquents) even without their awareness that they're doing anything wrong.
Common human childhood behavior that has been a characteristic of schoolyards for hundreds of years - teasing other kids about their looks, their names, for being too smart or too dumb or too tall or too short or wearing glasses or an infinite number of differences - can turn into something far more ominous-sounding (cyberbullying) when taken online. And it can get those kids in trouble not just with parents and teachers, but with the legal authorities, as well. Some of these laws don't distinguish between making death threats or relentless harassment and simply flinging a few mean words at someone in a moment of anger. In fact, under some definitions of cyberbullying, everyone who has ever said anything "cruel" to another person online (even in a computerized spat with a spouse) would technically be guilty of this crime. (Author's Note: I'm not suggesting that true bullying should be condoned or tolerated, but I believe the modern legal system has crossed a line in making every undesirable behavior subject to criminal penalties, to the detriment of the offender, society, and the justice system itself).
Kids tend to do with computers what kids did in past generations without computers. They play practical jokes, they poke into places they've never been, they try out things their friends are doing, they try to find out more about forbidden topics, such as sex, they hang out with other kids who are "bad influences."
And kids commit online offenses for the same reasons they commit offenses in the "real world" - rebellion, boredom, ignorance of the law, and because everyone else is doing it. In fact, according to a study by researchers at three universities, having friends who engage in cybercrime is one of the biggest determinants in whether juveniles commit such crimes.
Online is forever
Kids today benefit tremendously from the marvelous technology that lets them research a homework project from the comfort of their bedrooms without ever cracking open a physical book, or get acquainted with the cultures of other kids who live half way around the world - not just as abstract scribbles from a distant "pen pal" but through real-time audio/video conversations. But they also grow up with disadvantages that we "old folks" didn't have to worry about.
I shudder to imagine how much different my life might be if every stupid thing I did or said as a teenager had been recorded for posterity, subject to later discovery by potential employers, romantic interests, or my next-door neighbors. Sure, many of us kept diaries or journals where we confessed all of our sinful thoughts and deeds - but when we got old enough to recognize the foolishness of that, all we had to do was burn the thing.
Today's young people put their lives out there on Twitter and Facebook, make silly or mean comments on other people's websites, join questionable groups, post photos of themselves in less-than-professional positions (or, even if they're smart enough not to, they don't have control over the pictures of them that their friends - and "frenemies" - post online).
Social networks and self-incrimination
I've seen some discussion about whether online posts are protected under the fifth amendment of the U.S. Constitution (the right to not incriminate oneself). Good try, but most attorneys' opinions I've read agree that the Constitution grants the right not to be forced to testify against oneself. If you voluntarily post information on a social network or other online venue that incriminates you in a crime, all bets are off.
In the case of juveniles, Supreme Court cases have held that juveniles have some - but not all - of the same constitutional rights as adults. Since juveniles under 14 can waive their right against self-incrimination only if a parent, guardian, custodian, or attorney is present, and since the juvenile must waive the right "knowingly, willingly and understandingly" [G.S. 7B-2101(d)], one might ask if the self-incrimination rule still applies. That would be up to the court to decide, of course.
Most common juvenile cybercrimes
In addition to cyberbullying, which we discussed earlier, one of the most common online offenses committed by juveniles is "digital piracy" - sharing and/or downloading of software and digital music and movies without the permission of the copyright holder. Kids who would never in a million years shoplift a DVD will "steal" thousands of songs without compunction - and brag about it.
This happens because, according to a study that appeared last year in the journal Psychology, Crime and Law, most college students don't consider such downloading to be stealing and don't believe it's morally wrong. There are probably a number of reasons for this:
The intangible nature of digital "goods" is different from that of tangible goods. Traditionally, the crime of theft involved "unlawfully appropriately property without the effect consent of the owner, with the intent to deprive the owner of the use of the property." When you download a copy of a song, you don't deprive the owner of the use of that song, as you do when you steal a tangible item. Kids have a hard time understanding abstractions.
The corporate nature of most of the copyright holders means kids don't see themselves as taking something that belongs to another person (regardless of the law's treatment of corporations as persons for some purposes), but from a huge, nameless, faceless entity.
The belief that these corporate copyright holders are unethical, greedy and immoral means that even if they did see it as stealing, kids (who generally love Robin Hood stories) would find it more acceptable to steal from those who, in their eyes, are evil.
Another common juvenile cybercrime is viewing or swapping of pornographic material. This is a case (unless it involves underage models/actors) of an act that is illegal for juveniles but becomes perfectly legal on one's eighteenth birthday. A profound interest in sex is a part of human nature and teenagers are awash in hormones that make this "crime" almost an inevitability, given the temptation of all that easily available porn on the Internet.
Criminal trespass via computer (which most laws call unauthorized access) is another of the most common juvenile cybercrimes. The stereotypical hacker is a nerdy teenager who breaks into remote systems not for the purpose of stealing and using information, and often not even for the purpose of creating havoc, but merely to prove to himself and others that he has the skills to do it. In some cases, however, that teenager can be prosecuted under the same laws (and sentenced to the same penalties) as a terrorist who hacks into systems to disrupt vital communications with the intent to cause serious injury and death.
Some kids go further and, when they gain access to other systems and sites, want to do damage to leave their mark behind - much as their fathers and grandfathers expressed their teenaged angst by demolishing mailboxes or spray-painting graffiti on walls. The difference is that this cybervandalism can cost the victimized companies or individuals much more, and consequently the penalties are much steeper.
What can we do?
In some cases, education may be enough; most young people don't know the intricacies of the law nor understand the severity of the possible consequences. For some less serious juvenile offenders, the behavior will change simply in the course of growing up. Teaching children ethical and moral behavior in general will go a long way toward alleviating problems such as cyberbullying and cybervandalism; they need to learn empathy and how to put themselves in the place of the victims.
Kids may also harbor the illusion that their actions online are anonymous, that "nobody will ever know," that their posts boasting of their illegal behaviors are truly private, or even that nothing that happens in the cyberworld is "real." They may dehumanize the people on the other end of that network link and think of mistreating them as the same as doing it to a software construct in a game. Again, education and personal growth are key to changing that.
For some types of cybercrime, such as copyright violations/piracy, it's going to be harder. It may be time to rethink the system that makes these acts crimes in the first place. In fact, one of the reasons we have so many more criminals today is that we have so many more criminal laws. And there is evidence that when a populace is overwhelmed by laws to the point where even a person who tries to be an upstanding citizen can't keep from breaking some of them in just trying to go about his/her business, that causes a loss of respect for all laws, including the ones that are beneficial and necessary.
If we brand children as criminals, because of common and relatively normal behavior, we create a generation in which criminality becomes the norm. Perhaps the juvenile cybercrime problem will push us to finally reexamine our entire criminal justice system and how it "just grew that way."
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Debra Littlejohn Shinder, MCSE, MVP is a technology consultant, trainer, and writer who has authored a number of books on computer operating systems, networking, and security. Deb is a tech editor, developmental editor, and contributor to over 20 additional books on subjects such as the Windows 2000 and Windows 2003 MCSE exams, CompTIA Security+ exam, and TruSecure's ICSA certification.