Fraudulent Influence on a Computer System as a Method of Theft

The traditional criminal law interpretation of fraud does not allow for recognizing impact on a computer system as fraudulent deception. This clause is being currently revised, since in the condition of digitization and automation of economic processes the authority to make legally valid decisions involving property is increasingly often delegated not to humans, but to computer systems (crediting a bank account with cash deposited at ATMs, processing orders to transfer money, issuing consumer loans, and so on). Using the traditional interpretation of fraudulent deception, the doctrine offers a differentiated approach to the qualification of theft committed by providing deliberately false information: if the perpetrator deliberately misleads a human (for example, a bank employee), these actions should be qualified as fraud; if the false information is processed by computer software that makes a decision regarding the transfer of money automatically (for example, the scoring system of a bank), then it is recommended to impute the crime of theft from a bank account. The feasibility of such an approach raises certain doubts since it: ignores the intent of the perpetrator to commit theft through deception and makes the qualification of the crime dependent on the factors outside the intellectual and volitional control of the culprit; gives rise to considerable but unjustified differences in the punishments for crimes; does not agree with the conventional criteria for differentiating between forms of theft. While searching for a solution to this problem, the author turns to foreign experience and analyses key approaches to criminal law counteraction to theft committed through a fraudulent influence on a computer system; assesses the advantages and disadvantages of Russian criminal legislation; states that Art. 159.6 of the Criminal Code of the Russian Federation, especially written to counteract the thefts under analysis, does not perform its function, which makes law enforcers use a broad interpretation of fraudulent deception. Trying to provide an adequate criminal law assessment of the types of theft under analysis, the courts, derived of an opportunity to use Art. 159.6 of the Criminal Code of the Russian Federation, equal fraudulent influence on a computer system and deception of a person, which is proven by the analysis of a number of court acts. Thus, after a sharp limitation of the sphere of application for Art. 159.6 of the Criminal Code of the Russian Federation which took place in 2017, the law enforcement practice is gradually moving towards a broad interpretation of fraudulent deception similar to that used in the UK Fraud Act 2006.