Using the Google search engine, which is interrogated by several keywords, an individual accidentally accesses, due to a flaw of it, the extranet system of the National Health Security Agency of the food, environment and work. Although he becomes aware, going up in the directory tree to the home page, that the connection to this system normally requires authentication by means of an identifier and a password, he continues and even downloads data, which it then distributes to third parties. The use of data recovery software comes easy here.
The Next Process
He is then prosecuted, released at first instance, but sentenced on appeal, both for fraudulent retention in an automated data processing system,the offense of fraudulent access is however removed in the circumstances and theft. The convict appeals in cassation to challenge the meeting of the constituent elements of the two offenses held against him. In particular, the incrimination of theft is, according to him, unsuited to the facts alleged against him, in the absence of protection of the data he copied and the dispossession suffered by professionals. The Court of Cassation nevertheless rejects the arguments: it notes that, in view of the findings of the Court of Appeal, the person concerned remained in an automated processing system after discovering that it was protected and removed data that it has used without the consent of its owner, and thus approves the conviction in its entirety.
The Main Case
This case according to the pseudonym of the user, thus gave rise to a judgment, promised to the honors of the Bulletin, which retains a solution to the manifest interest: the flight can consist of downloading computer data, from a distance, without taking hold of their support. But, once again, the criminal chamber is essentially decided by approval of the judges of the merits, being careful not to put any rule of principle that could engage in the future. While such a method makes it impossible to extrapolate with certainty beyond the facts of the case, it is nevertheless necessary to examine the adequacy and relevance of the flight qualification of which they were affixed.
The adequacy of the flight qualification
The reported judgment clearly admits the constitution of the offense of theft, whereas a priori the in corporeality of computer data compromised the possibility. It is in fact conventionally taught that the substantive thing, which is used in the Criminal Code, refers to a tangible object which does not necessarily have any commercial or legal value as opposed to the term property. On the one hand, the appropriation of these things by anyone would often be inconceivable or questionable how, for example, to determine whether a particular concept or idea, by nature, fleeing of “free path” belongs to someone, whereas theft consists in seizing the “other” thing by acting “fraudulently” thus against the will or without the knowledge of its owner. On the other hand, in the case of information, their apprehension takes the form of a reproduction, that is to say, an act which does not lead to a correlative dispossession to the detriment of the legitimate owner (he does not is not private), whereas theft is the act of “subtracting”, that is, of taking off.