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Computer Viruses: Why writing and making available a computer virus is not a crime

April 2007

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I've been doing some research on computer viruses in the past few weeks. They've always intrigued me, not only computer viruses but also biological viruses. Unfortunately when I search the web and look in books I find a lot of negativity towards them.

Okay, I get it, and I'm not going to lie, computer viruses are called malware for a reason (malicious software). The reason being that (most of them) are malicious. They corrupt files, delete years of information, and cause billions of dollars a year in damages. But who is responsible for this `devastation' they bring? The virus author or the one who downloads the virus and intentionally (or unintentionally) infects the first host?

I've been thinking a lot about this, perhaps my viewpoint is a bit biased, but I feel I can make a very reasonable argument here. In America, my home country and the greatest country in the world (biased? Me?), computer software falls into the "Freedom of Speech" category, you know, that little thing called the First Amendment, in that old scrap of camel-hide called the Constitution.

Computer programs, and source code, no matter the function or intent of the program, it's all protected under the First Amendment. People may object to that (most sane people don't), but the fact of the matter is that it IS Freedom of Speech. Just like the journalist writes his articles, the painter paints his paintings and the author pours out words on paper to create his books. The programmer falls into this category as well. The programmer expresses himself by a different means however, just like the way a journalist and a painter express themselves differently. Programmers are protected by the First Amendment just as those painters and writers. There's no doubt about it (to me at least). I think it fits perfectly in there.

However, the point I would like to make is that a virus writer does nothing illegal in writing a virus, or 2 viruses (or virii depending on what you prefer; viruses is the proper term however), or a million. He simply writes his software, but instead of the software being made to write documents (like this word processor I'm writing this on now), or to make entertaining games, his programs are different. They are free-willed entities, multiplying, carrying out tasks, doing what they are meant to do, all on their own. A computer virus is simply a piece of software, despite what its function is, its software no matter how you look at it.

So, when I, or a well known virus writer, or well known (or not so well known) virus writing lab creates a virus, are they doing anything illegal? Before you answer, I suggest you consider this:

A gun company makes guns. Guns are simply pieces of machinery which perform the tasks they are built to perform. Guns kill thousands of people each and every year. People die every single day from firearms. But, hypothetically, if I were to go out, buy a gun, and shoot someone (perhaps my annoying neighbor?). Who would get charged for that crime?

I can guarantee you that it wouldn't be the gun company, it would be me. While the gun company may have given me the means and opportunity, it was my intent and actions which lead to the events that transposed. The gun company may have given me the gun, but I pulled the trigger. No gun company (as far as I know and as of this date) has ever been successfully charged for the murder of another human being. The gun company makes the guns, and knows full well what can happen, and hell, some firearms are designed with no other purpose than to kill another person. But whose fault is it when it comes down to it? The gun company's or the person who uses the product of the gun company?

It's the person who uses the gun, the person who pulls the trigger, not the person who designed, or authorized the production of the gun.

Cigarettes kill just as many people each year as guns do, if not more. They cause cancer and lead to death. It's a cold hard fact (and I'm a smoker myself). But, I choose to smoke, I choose to buy the cigarettes, light them, and smoke them. The cigarette companies don't force me to light-up, I choose to do so. So when I get cancer (hopefully I wont, but if I do I'll know why), I'm not going to blame the cigarette companies, I can only blame myself.

So how does this connect to computer viruses? Well if you can't see the simple, common thread, it's this: While the virus writer may write the virus. While he may give the means and opportunity for a disgruntled employee, or angry school-kid to infect a computer, so long as the writer does not illegally implant the virus onto a system, he is doing nothing illegal. He is acting as the Remington's and Phillip-Morris's of this world and giving the means and opportunity. But the person who releases the virus illegally is the one with the intent, and the one who chooses to act. Not the writer.

Therefore, the writer cannot be held responsible for the damage which his virus causes. He didn't choose to have someone take the virus and do illegal things with it. He simply gave the opportunity, just like a gun company or cigarette company gives the opportunity for bad things to happen with their products.

So when all is said and done, when all the cards are counted, who is to blame? The virus writer or the person who takes the work of the writer and uses it for illegal and bad purposes?

It's the user, not the writer.

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