Many of those cases involve instances of computer hacking and other unauthorized intrusions, as well as softwarePIRACY and computer fraud.. All this usually occurs without computer owner
Trang 118 U.S.C.A § 1030 Section 225 of the act is also known as the Cyber Security Enhancement Act
of 2002
The Department of Justice’s Computer Crime and INTELLECTUAL PROPERTY Section is responsible for prosecuting computer-crime cases Many of those cases involve instances of computer hacking and other unauthorized intrusions, as well as softwarePIRACY and computer fraud
One set of especially destructive crimes—
internal computer crimes—includes acts in which one computer’s program interferes with another computer, thus hindering its use, damaging data or programs, or causing the other computer to crash (i.e., to become temporarily inoperable) Two common types
of such programs are known in programming circles as worms and viruses Both cause damage
to computer systems through the commands written by their authors Worms are indepen-dent programs that create temporary files and replicate themselves to the point where com-puters grow heavy with data, become sluggish, and then crash Viruses are dependent programs that reproduce themselves through a computer code attached to another program, attaching additional copies of their program to legitimate files each time the computer system is started or when some other triggering event occurs
Still another rising threat to computer security is the emergence of botnets, short for robot computers on the INTERNET The actual robot is a software code that has been programmed to conduct repetitive tasks Gen-erally using E-MAIL scams or malicious codes attached to pirated software, botnet producers infect ordinary consumers’s home computers, which then become remotely controlled zom-bies These, in turn, are bundled together by another botnet and become host computers used for a variety of illegal activities All this usually occurs without computer owners know-ing that their computers have been infected or used According to the Business Software Alliance’s (BSA) 2008 Internet Piracy Report, the FBI reported more than one million computers being ensnared in botnets
The dangers of computer worms and viruses gained popular recognition with one of the first cases prosecuted under the Computer Fraud and Abuse Act In United States v Morris (928 F.2d 504 [2d Cir 1991]), Cornell University student Robert T Morris was convicted of violating a provision of the act that punishes
anyone who, without authorization, intentionally accesses a “federal interest computer” and damages or prevents authorized use of infor-mation in such a computer, causing losses of
$1,000 or more Morris, a doctoral candidate in computer science, had decided to demonstrate the weakness of security measures of computers
on the Internet, a network linking university, government, and military computers around the United States His plan was to insert a worm into as many computers as he could gain access
to, but to ensure that the worm replicated itself slowly enough that it would not cause the computers to slow down or crash However, Morris miscalculated how quickly the worm would replicate By the time he released a message on how to kill the worm, it was too late: Some 6,000 computers had crashed or become catatonic at numerous institutions, with estimated damages of $200 to $53,000 for each institution Morris was sentenced to three years imprisonment, PROBATION, and 400 hours of
COMMUNITY SERVICE, and was fined $10,500 The U.S Supreme Court declined to review the case (Morris, cert denied, 502 U.S 817, 112 S Ct 72,
116 L Ed 2d 46[1991])
Computer hackers often share Morris’s goal
of attempting to prove a point through the clever manipulation of other computers Hack-ers, who, typically, are young, talented, amateur computer programmers, earn respect among their peers by gaining access to information through TELECOMMUNICATIONS systems The information obtained ranges from other indivi-duals’ e-mail or credit histories to the Depart-ment of Defense’s secrets
One case in 1992 captured national head-lines In what federal investigators called a conspiracy, five young members of an under-ground New York City gang of hackers, the Masters of Deception (MOD), faced charges that they had illegally obtained computer pass-words, possessed unauthorized access devices (long-distance calling-card numbers), and com-mitted wire fraud in violation of the Computer Fraud and Abuse Act Otto Obermaier, the U.S attorney who prosecuted the youths, described their activities as“the crime of the future,” and said that he intended to use the case to make a critical statement about computer crime The
INDICTMENT contained 11 counts, each punish-able by at least five years in prison and individual fines of $250,000 Supporters of MOD’s civil liberties questioned whether the gang members had done anything truly illegal
68 COMPUTER CRIME
Trang 2MOD members Paul Stira and Eli
Lado-poulos pleaded guilty to the charges against
them They confessed that they had broken the
law but insisted that they had not done anything
for personal profit They were sentenced to six
months in a federal penitentiary, followed by six
months’ home detention John Lee and Julio
Fernandez faced specific charges of illegally
selling passwords for personal profit Lee
pleaded guilty and received a year behind bars,
followed by 300 hours of community service
Fernandez bargained with prosecutors, offering
them information on MOD activities, and thus
received no jail time Gang leader Mark Abene,
who was notorious in computer circles by his
handle Phiber Optik, pleaded guilty to charges
of fraud A U.S district court judge sentenced
Abene to a year in federal prison, hoping to
send a message to other hackers However, by
the time Abene was released from prison in
1995, his notoriety had grown beyond the
hacker underground Many in the computer
world hailed him as a martyr in the modern
web of computer technology and criminal
prosecution Abene subsequently found
em-ployment as a computer technician at a New
York-based on-line service
Computer crime can become an obsession
Such was the case for Kevin Mitnick, a man
federal prosecutors described prior to his arrest
as the most wanted computer hacker in the
world In the early 1980s, as a teenager, Mitnick
proved his mettle as a hacker by gaining access
to a North American Air Defense terminal, an
event that inspired the 1983 movie War Games
Like the MOD gang, Mitnick gained access to
computer networks through
telecommunica-tions systems In violation of federal law, he
accessed private credit information, obtaining
some 20,000 credit numbers and histories
Other break-ins by Mitnick caused an estimated
$4 million in damage to the computer
opera-tions of the Digital Equipment Corporation
The company also claimed that Mitnick had
stolen more than $1 million in software
Mitnick was convicted, sentenced to one
year in a minimum-security prison, and
then released into a treatment program for
compulsive-behavior disorders Federal
investi-gators tried to keep close track of him during
his probation, but in November 1992 he
disappeared Authorities caught up with his
trail when Mitnick broke into the system of
computer-security expert Tsutomu Shimomura
at the San Diego Supercomputer Center—a move that was clearly intended as a challenge to another programming wizard Shimomura joined forces with the Federal Bureau of Investigation to pursue their elusive quarry in cyberspace Using a program designed to record activity in a particular database that they were sure that Mitnick was accessing, while monitor-ing phone activity, Shimomura and authorities narrowed their search to Raleigh, North Car-olina A special device detecting cellular-phone use ultimately led them to Mitnick’s apartment
Mitnick was arrested and was charged on 23 federal counts He plea-bargained with prose-cutors, who agreed to drop 22 of the counts in exchange for Mitnick’s guilty PLEA for illegally possessing phone numbers to gain access to a computer system Mitnick was sentenced to eight months in jail
Mitnick’s case illustrates the difficulties that legislatures and courts face when defining and assigning penalties for computer crime Using a computer to transfer funds illegally or to embezzle money is clearly a serious crime that merits serious punishment Mitnick broke into numerous services and databases without per-mission and took sensitive information, in violation of federal laws; however, he never used that information for financial gain This type of behavior typically has no counterpart outside cyberspace—for example, people do not break into jewelry stores only to leave a note about weak security
Some instances of computer crimes demon-strate the way in which small computer files that require relatively little effort on the part of the perpetrator can cause millions of dollars’ worth
of damage to computer networks In March
1999 David L Smith of New Jersey created a virus that lowered the security levels of certain word-processing programs and caused infected computers to send e-mail messages containing attachments with the virus to e-mail addresses contained in the infected computer’s e-mail address book The virus was activated on an infected computer when the user opened the word-processing program
Smith posted a message on March 26, 1999,
to an Internet newsgroup called “Alt.Sex.” The message claimed that if a user opened an attachment, it would provide a list of passcodes
to pornographic websites The attachment contained the virus, which became known as the“Melissa” virus Smith was arrested by New
COMPUTER CRIME 69
Trang 3Jersey authorities on April 1, 1999, but not before the virus had infected an estimated 1.2 million computers and affected one-fifth
of the country’s largest businesses
The total amount of damages was $80 million Smith pleaded guilty in December
1999 to state and federal charges He faced 20 months in a federal prison and a fine of approximately $5,000 for his crime He faced additional time in state prison According to U.S Attorney Robert J Cleary, “There is a segment in society that views the unleashing of computer viruses as a challenge, a game Far from it; it is a serious crime The penalties
Mr Smith faces—including potentially five years in a federal prison—are no game, and others should heed his example.”
Others have continued to commit such crimes In February 2000 a computer hacker stunned the world by paralyzing the Internet’s leading U.S Websites Three days of concen-trated assaults upon major sites crippled businesses such as Yahoo, eBay, and CNN for hours, leaving engineers virtually helpless to respond Soon afterwards, serious doubts were raised about the safety of Internet commerce
An international hunt ensued, and Websites claimed losses in the hundreds of millions of dollars After pursuing several false leads, investigators ultimately charged a Canadian teenager in March 2000 in one of the attacks
On February 7, 2000, engineers at Yahoo, the popular portal Website, noticed traffic slowing to a crawl Initially suspecting faulty equipment that facilitates the thousands of connections to the site daily, they were surprised to discover that it was receiving many times the normal number of hits Buckling under exorbitant demand, the servers—the computers that receive and transmit its Internet traffic—had to be shut down for several hours
Engineers then isolated the problem: Remote computers had been instructed to bombard Yahoo’s servers with automated requests for service Over the next two days, several other major Websites suffered the same fate Hackers hit the auction site eBay, the bookseller Amazon.com, the computer journalism site ZDnet, stock brokerages E*Trade and Datek, the computer store Buy.com, the web portal Excite at Home, and the flagship site for news giant CNN As each site ground to a halt
or went offline, engineers tried in vain to
determine where the digital bombardment had originated
Experts expressed amazement at the attacks’ simplicity as well as at the inherent vulnerabil-ities that they exposed in the Internet’s architecture Hackers had launched what quickly came to be known as a distributed Denial-of-Service (DOS) attack—essentially a remote-controlled strike using multiple computers First, weeks or months in advance, they had surreptitiously installed commonly available hacking programs called scripts on 50 or more remote computers, including university systems chosen for their high-speed connections to the Internet Later, they activated these scripts, turning the remote computers into virtual zombies that were ordered to send unfathom-ably large amounts of data—up to one gigabyte per second—continuously to their victims These data asked the target Websites to respond, just as every legitimate connection to a Website does The sheer multitudes of requests and responses overwhelmed the victim sites To escape detection, the zombies forged their digital addresses
Federal investigators were initially stymied They had legal authority to act under 18 U.S.C.A § 1030, which criminalizes“knowingly transmit(ting) a program information code or command” that “intentionally causes damage.” Sleuthing was difficult, however Not only had the hackers covered the trail well, but also the FBI had suffered numerous personnel losses to private industry The bureau had to hire consultants and had to develop special software
to assist in its manhunt Moreover, as FBI official Ron Dick told reporters, the prolifera-tion of common hacking tools meant that even
a teenager could have orchestrated the crime
In early March 2000, authorities arrested 17-year-old New Hampshire resident Dennis Moran, allegedly known online as “Coolio.” The lead proved false In mid-April, claiming to have found “Mafiaboy,” Royal Canadian Mounted Police arrested a 15-year-old Mon-treal hacker The youth, whose real name was not divulged, allegedly had boasted of his exploits online while trying to recruit helpers Officials charged him with a misdemeanor for launching the attack upon CNN’s Website Although the DEPARTMENT OF JUSTICE contin-ued its hunt, this denial-of-service attack was never completely resolved Analysts have noted
70 COMPUTER CRIME
Trang 4that DOS attacks have occurred for several years,
although not to the extent as that of February
2000 In May 2001, for instance, the White
House’s Web page was hit with a DOS attack that
blocked access to the site for about two hours
Identity theft and credit card fraud owe
much of their ubiquity to computer hacking
Despite increasingly sophisticated encryptions
and encoded protections from card issuers,
criminals appear to have little trouble
decipher-ing and/or circumventdecipher-ing them In August
2009, the JUSTICE DEPARTMENT indicted Miami
resident Alberto Gonzalez for what the
depart-ment referred to as the largest case of computer
crime and identity theft ever prosecuted
Gonza-lez, along with two unnamed Russian
con-spirators, had accessed more than 130 million
credit and debit card numbers between 2006
and 2008 Some were used for unauthorized
purchases and bank withdrawals, while others
were sold online Of note, Gonzalez had
previously been arrested in 2003 for a similar
crime, but worked with prosecutors and the
SECRET SERVICE to identify his former online
conspirators who traded and sold card numbers
in the black market
Based upon the sheer number of cases
involving computer crime, commentators
re-main puzzled as to what is necessary to curb this
type of activity Clearly, technology for law
enforcement needs to stay ahead of the
technology used by the hackers, but this not
an easy task A number of conferences have
been held to address these issues, often
attract-ing large corporations such as Microsoft and
Visa International, but the general consensus is
that the hackers still hold the upper hand, with solutions still elusive
FURTHER READINGS Business Software Alliance 2008 “Internet Piracy Report.”
Available online at http://global.bsa.org/files/Internet_
Piracy_Report.pdf; website home page: http://global.
bsa.org/ (accessed August 19, 2009).
Cadoree, Michelle 1994 Computer Crime and Security.
Washington, D.C.: LC Science Tracer Bullet.
Department of Justice 2009 “Alleged International Hacker Indicted for Massive Attack on U.S Retail and Banking Networks ” Press Release, August 17, 2009 Available online at http://www.usdoj.gov/opa/pr/2009/August/
09-crm-810.html; website home page: http://www.
usdoj.gov/ (accessed August 20, 2009).
Gemignani, Michael C 1993 Computer Law New York:
Clark Boardman Callaghan.
Irwin, Richard D 1990 Spectacular Computer Crimes.
Homewood, Ill.: Dow Jones-Irwin.
Mungo, Paul 1992 Approaching Zero New York: Random House.
Nugent, Hugh 1991 State Computer Crime Statutes Justice Department National Institute of Justice.
Slatalla, Michelle, and Joshua Quittner 1995 Masters of Deception New York: HarperCollins.
Soma, John T 1994 Computer Technology and the Law.
Colorado Springs: Shepard ’s/McGraw-Hill.
CROSS REFERENCE E-Mail.
COMPUTER LAW ASSOCIATION See INTERNATIONAL TECHNOLOGY LAW ASSOCIATION
vCOMSTOCK, GEORGE FRANKLIN George Franklin Comstock was born August 24,
1811, in Williamstown, New York He graduated from Union College in 1834, was admitted to the
George Franklin Comstock 1811–1892
◆
❖
1811 Born, Williamstown, N.Y.
1837 Admitted
to New York bar
1847–51 Served as first reporter
of the New York Court of Appeals
1852–53 Served as solicitor general of the United States 1855–61 Served on the New York Court of Appeals
1861–65 Civil War
1860–61 Served as chief justice of the Court of Appeals
1870–77 Served as trustee of Hobart College
1870–90 Served
as trustee of Syracuse University
1892 Died, Syracuse, N.Y.
1867 Acted as editor for Kent's Commentaries
Trang 5New York bar in 1837, and received an honorary doctor of laws degree in 1858
In 1847 Comstock began his service in the New York judiciary system as first reporter of the New York Court of Appeals, a position he held until 1851 From 1852 to 1853, he served
as SOLICITOR GENERALof the United States, then returned to the New York courts as justice of the New York Court of Appeals in 1855 He sat
on the bench until 1861, becoming chief justice
in 1860 In 1868, he was a representative at the New York Constitutional Convention
Comstock pursued interests in the field of education in addition to his legal career He was
a trustee of Hobart College from 1870 to 1877 and of Syracuse University from 1870 to 1890
He established the St John’s School for Boys, which is located in Manilus, New York
In the literary field, Comstock acted as editor for Kent’s Commentaries Comstock died September 27, 1892, in Syracuse, New York
COMSTOCK LAW OF 1873 The Comstock Law of 1873 was a federal law that made it a crime to sell or distribute materials that could be used for contraception
orABORTION, to send such materials or informa-tion about such materials through the federal mail system, or to import such materials from abroad It was motivated by growing societal concerns over OBSCENITY, abortion, pre-marital and extra-marital sex, the institution of MAR-RIAGE, the changing role of women in society, and increased procreation by the lower classes
Following the bloodbath of the Civil War and theEMANCIPATIONof the slaves, many Americans sought a return to simpler times, while other Americans yearned for a nationwide spiritual and moral revival
But the United States was undergoing rapid change during this period The industrial revolution was making a large number of jobs available to members of both sexes, and women were taking advantage of this opportunity by entering the workforce in unprecedented num-bers The United States was also experiencing a significant wave of IMMIGRATION Some Amer-icans complained that the new immigrants were tainting the moral fabric of the United States with their radical political beliefs and their permissive attitudes about sex Members of the
so-called upper classes grew worried that mem-bers of the lower classes were procreating at a faster rate, in part because better educated, more affluent women were postponing their childbearing years to lead lives of their own choosing, free from the dictates or needs of their fathers, husbands, or children
The AMERICAN MEDICAL ASSOCIATION (AMA) voiced concern about abortion, not only because of the danger to women, but also because of the possibility of a woman over-looking the duties imposed on her by the marriage contract The Catholic Church condemned abortion andBIRTH CONTROLas twin evils States began enacting laws that made it more difficult
to DIVORCE and gave single people greater incentive to marry
In the middle of such local reform efforts in New York City was 29-year-old Anthony Comstock, head of the New York Society for the Suppression of Vice (NYSSV) Established
in 1872, the NYSSV was financed by some of the wealthiest and most influential New York philanthropists Comstock used their money to lobby the New York State Legislature for laws criminalizing pre-marital sex and ADULTERY, among other moral vices He also used their money to lobby Congress for a law that would implement his overall agenda
In 1873 Comstock got his wish, when Congress passed An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use March 3, 1873, ch
258, § 2, 17 Stat 599 Known popularly as the Comstock Law, the statute’s avowed purpose was
“to prevent the mails from being used to corrupt the public morals.” The Comstock Law made it a crime to sell or distribute materials that could be used for contraception
or abortion, to send such materials or informa-tion about such materials in the federal mail system, or to import such materials from abroad Immediately after the law was enacted, Comstock was appointed special agent of the U.S Post Office and given the express power to enforce the statute Comstock held this position for the next 42 years
Comstock claimed to have successfully prosecuted more than 3,600 defendants under the federal law and destroyed more than 160 tons of obscene literature in his role as special agent At first Comstock targeted what he considered to be easy prey, mail-order services
72 COMSTOCK LAW OF 1873
Trang 6and low-rent shops that sold cheaply produced
photographs of nude women Typically poor and
uneducated, the defendants first prosecuted by
Comstock often failed even to present a defense
on their own behalf
Comstock next targeted indecency in high
culture, prosecuting prominent art gallery
own-ers for selling European paintings containing
partially clad women But Comstock’s
attemptedCENSORSHIPof traditional art triggered
a groundswell of opposition The New York
Times criticized Comstock for overreaching By
1887 many mainstream Americans who had
originally supported the Comstock Law were
now reconsidering that support in light of
countervailing concerns over free speech But
Comstock was not deterred, continuing to
PROSECUTE alleged violators as they were made
known to him
At the turn of the century 24 states had
enacted their own versions of the Comstock
Act, many of which were more stringent than
the federal statute The Comstock Law itself was
recodified and reenacted several times in the
twentieth century, and prosecutions for
viola-tions of the federal statute continued even as
Americans became increasingly diverse and
tolerant As a result, several challenges were
made to the constitutionality of the Comstock
Law, most of them onFIRST AMENDMENTgrounds
To the surprise of many observers, the U.S
Supreme Court continued to uphold the
Com-stock Law into the 1960s United States v
Zuideveld, 316 F.2d 873, 875-76, 881 (7th Cir
1963)
The fate of the Comstock Law began to
change, however, when the Supreme Court
announced its decision in MILLER V.CALIFORNIA,
413 U.S 15, 93 S Ct 2607, 37 L Ed 2d 419
(1973) In Miller the Supreme Court ruled that
material is obscene if (1) the work, taken as a
whole by an average person applying
contem-porary community standards, appeals to the
prurient interest; (2) the work depicts sexual
conduct in a patently offensive way; and (3) the
work, when taken as a whole, lacks serious
literary, artistic, political, or scientific value
Although the Comstock Law was never
chal-lenged on grounds that it violated the Miller
standards for obscenity, the Supreme Court
declared the law unconstitutional in 1983
In Bolger v Youngs Drug Products Corp., 463
U.S 60, 103 S Ct 2875, 77 L Ed 2d 469
(1983), the Supreme Court re-examined the reasons underlying the Comstock Law (then codified at 39 USCA § 3001) in light of the First Amendment standards governing commercial speech, which allow the government to regulate false, deceptive, and misleading advertisements
if the regulation is supported by a substantial governmental interest The Court concluded that the Comstock Law did not meet this burden The government’s interest in purging all mailboxes of advertisements for contra-ceptives is more than offset, the Court said, by the harm that results in denying the mailbox owners the right to receive truthful information bearing on their ability to practice birth control
or start a family “We have previously made clear,” the Court emphasized, “that a restriction
of this scope is more extensive than the Constitution permits, for the government may not reduce the adult population … to reading only what is fit for children.”
CROSS REFERENCES Abortion; Adultery; American Medical Association; Birth Control; Censorship; First Amendment; Freedom of Speech.
CON
A prefix meaning with or together A slang abbreviation for confidence, as in con man or con game To con someone is to deceive or take advantage of a person through fraud or trickery after winning the person’s confidence Con is also used as a slang abbreviation for convict, as in ex-con to mean someone previously incarcerated An abbreviation for contra, which means against To show the pros and cons of a particular issue means to present arguments or evidence on both sides
CONCEALMENT OF BIRTH OR DEATH The crime of refusing to disclose the birth or death
of a newborn child
The offense is entirely statutory in nature, and state laws differ on its elements In some jurisdictions the essence of the offense is the deliberate concealment of the birth; in others it
is the willful concealment of the death Intent to conceal the birth or death must be proven in order to obtain a conviction
The concealment must be accomplished in such a manner as to prevent ascertainment of whether the child was stillborn or was born alive and died as a result of aHOMICIDE There is
no requirement that every other person be
CONCEALMENT OF BIRTH OR DEATH 73
Trang 7deprived of the knowledge of the birth or death
of the child The crime is still actionable when another person participates in withholding the information Failure to provide notice of the birth of an infant who later dies does not constitute a concealment, however
Evidence of stillbirth has been held to entitle
an accused to anACQUITTALunder some statutes
Under others it is essential to prove the live birth of the child And in some states the offense can be committed regardless of whether there was stillbirth or live birth ILLEGITIMACY is a necessary element of the offense in a majority of jurisdictions, based on the supposition that concealment is generally perpetrated only by those individuals wishing to conceal or destroy proof of the birth
CONCILIATION The process of adjusting or settling disputes in a friendly manner through extrajudicial means
Conciliation means bringing two opposing sides together to reach a compromise in an attempt to avoid taking a case to trial Arbitration, in contrast, is a contractual remedy used to settle disputes out of court In arbitration the two parties
in controversy agree in advance to abide by the decision made by a third party called in as a mediator, whereas conciliation is less structured
Conciliation is used in labor disputes before arbitration and may also take place in several areas of the law A court of conciliation is one that suggests the manner in which two opposing parties may avoid trial by proposing mutually acceptable terms In the past, some states have had bureaus of conciliation for use in DIVORCE
proceedings
The federal government has established the
FEDERAL MEDIATION AND CONCILIATION SERVICE, an independent department devoted to settling labor disputes by conciliation and MEDIATION,
or settlement of disputes through the interven-tion of a neutral party
CROSS REFERENCE Alternative Dispute Resolution.
CONCILIATION, INTERNATIONAL
A method by which the differences between nations may be settled by means of a commission employed to consider and report upon such differences
WhenCONCILIATIONis used, a commission of inquiry is introduced to investigate and report
on the facts surrounding a particular dispute The report need not be in the form of an award, and the parties involved may freely decide whether or not they will give it any effect Conciliation is distinguishable from arbitration
in that the terms of a conciliation settlement constitute mere proposals to the disputing powers, whereas an arbitration settlement is binding
CONCLUSION OF LAW The rule by which the rights of parties in a lawsuit are determined by a judge’s application of relevant statutes or legal principles to the facts of the case that have been found to be true by the jury The final judgment or decree rendered by a court based upon the verdict reached by the jury Legal principles that provide the basis for the decision rendered by a judge in a case tried without a jury
or with an advisory jury after certain facts have been established
Under rules of federal CIVIL PROCEDURE, conclusions of law made in such cases must
be stated separately from the findings of fact
CONCLUSIVE Determinative; beyond dispute or question That which is conclusive is manifest, clear, or obvious It
is a legal inference made so peremptorily that it cannot be overthrown or contradicted
A conclusive presumption cannot be refuted;
no evidence can rebut it, as in the presumption that a child who is below a certain age has
a fundamental inability to consent to sexual relations
Conclusive evidence is evidence that is either unquestionable because it is so clear and convincing or because the law precludes its contradiction A death certificate is considered conclusive evidence that a person has died
CONCUR
To agree; coincide; act together To concur is to evidence consent in an affirmative or concrete manner as opposed to merely acquiescing or silently submitting to a decision
In appellate court practice, a judge may file a concurring opinion, which expresses accord with the conclusions of the majority opinion filed in
74 CONCILIATION
Trang 8the same lawsuit but at the same time separately
states the judge’s reason for reaching the same
conclusions
CONCURRENT
Simultaneous; converging; of equal or joint
authority
Concurrent estates is a term used inPROPERTY
LAW to describe ownership of, or possessory
interest in, a piece of property by two or more
people jointly, such as a JOINT TENANCY or
TENANCY IN COMMON
Concurrent power is the authority of
Con-gress and the state legislatures to make laws on
the same subject matter while working
inde-pendently of one another
Concurrent negligence involves the negligent
acts of at least two people that, although they
might not have occurred at exactly the same
moment, produce a single, indivisible injury
Concurrent sentences are two or more prison
terms to be served simultaneously, one of which
might be longer than the others The prisoner is
entitled to be discharged after the longest of the
terms is served
CONCURRENT ESTATES
Ownership or possession of real property by two or
more individuals simultaneously
The three most common kinds of
CONCUR-RENT ESTATES are JOINT TENANCY; TENANCY BY THE
ENTIRETY; andTENANCY IN COMMON
CONCURRENT JURISDICTION
The authority of several different courts, each of
which is authorized to entertain and decide cases
dealing with the same subject matter
State and federal courts possessCONCURRENT
JURISDICTION over particular civil lawsuits, such
as an action to declare a state law
unconstitu-tional Federal courts have exclusive jurisdiction
over other matters, such as cases involving
PATENTS
CONCURRENT RESOLUTION
An action of Congress passed in the form of an
enactment of one house, with the other house in
agreement, which expresses the ideas of Congress
on a particular subject
ACONCURRENT RESOLUTION does not have the legal impact of aJOINT RESOLUTION, which has the force of official legislative action It is more commonly employed as a method of expressing
an opinion on some question Commendations
to victorious sports teams and statespersons and petitions from state legislatures to Congress or the president are examples of CONCURRENT
resolutions
CONCURRENT WRITS Court orders issued in duplicate originals; several orders issued at the same time for the same purpose
A court could, for example, issue CONCUR-RENT WRITSordering the arrest of a person whose whereabouts were unknown, or it could issue
CONCURRENT writs for service on several defen-dants in a single lawsuit
CONDEMN
To adjudge or find guilty of a crime and sentence
To declare a building or ship unsafe for use or occupancy To decide that a navigable vessel is a prize or is unfit for service To take privately owned land for public use in exchange for just compensation by virtue of the power of eminent domain
CONDEMNATION The process of implementing eminent domain, whereby the government takes private property for public use
When land is condemned throughEMINENT DOMAIN, owners must be paidJUST COMPENSATION
and provided with notice and an opportunity to defend their rights
CONDITION
A future and uncertain event upon the happening
of which certain rights or obligations will be either enlarged, created, or destroyed
A condition may be either express or implied An express condition is clearly stated and embodied in specific, definite terms in a contract,LEASE, or deed, such as the provision in
an installment credit contract that, if the balance is paid before a certain date, the debtor’s interest will be reduced
An implied condition is presumed by law based upon the nature of a particular
CONDITION 75
Trang 9transaction and what would be reasonable to do
if a particular event occurred If a woman leases
a hall for a wedding on a certain date, her ability
to use the hall is based on its implied continued existence If the hall burns down before that date, use of the hall is impossible due to fire;
therefore, the law would imply a condition excusing the lessor from liability
In the law of contracts, as well as estates and conveyancing, conditions precedent and subse-quent may exist
A condition precedent must occur before a right accrues A woman may convey her house
to her son based on the condition that the son marry by the age of twenty-five If the son fails
to marry by that age, he has lost his right to the house Similarly, in contract law, if an agree-ment is signed by one party and sent to a second party with the intention that it will not become enforceable until the second party signs it, the second party’s signature would be a condition precedent to its effectiveness
A condition subsequent means that a right may be taken away from someone upon the
occurrence of a specified event An owner of property may convey land to a town on the condition that it be used only for church purposes If the land conveyed is used to build
a shopping mall, then ownership would revert
to the original owner
A condition subsequent may also affect a transaction involving a gift In many states, an engagement ring is regarded as an INTER VIVOS
gift to which no conditions are attached In some states, however, its ownership is consid-ered to be conditioned upon the subsequent
MARRIAGEof the couple involved; therefore, if a woman does not marry the man who gave her the engagement ring, ownership reverts to him and she must return it to him
Concurrent conditions are conditions in the law of contracts that each party to the contract must simultaneously perform
CONDITIONAL Subject to change; dependent upon or granted based on the occurrence of a future, uncertain event
A court may issue
concurrent writs for
the arrest of a person
whose whereabouts
are unknown.
UNDERWOOD &
WUNDERWOOD/CORBIS.
76 CONDITIONAL
Trang 10A conditional payment is the payment of a
debt or obligation contingent upon the
perfor-mance of a certain specified act The right to
demand back payment if the condition fails is
generally reserved
CONDOMINIUM, INTERNATIONAL
A non-self-governing territory over which two
states share administrative control In this context
the term coimperium is sometimes used
inter-changeably with the term condominium
CONDOMINIUMS AND
COOPERATIVES
Two common forms of multiple-unit dwellings,
with independent owners or lessees of the
individual units comprising the multiple-unit
dwelling who share various costs and
responsibili-ties of areas they use in common
A condominium is a multiple-unit dwelling
in which there is separate and distinct
owner-ship of individual units and joint ownerowner-ship of
common areas For example, in an apartment
house, the individual owners would each own
their own apartments while all the owners of the
separate apartments would together own the
parts of the building common to all of them,
such as the entrances, laundry rooms, elevators,
and hallways The building is managed by the
condominium association, either directly or
through a professional manager The owners
of the individual units are jointly responsible for
the costs of maintaining the building and
common areas, but they are individually
responsible for the maintenance expenses of
their particular units
A cooperative apartment house is usually
owned and managed by a corporation, and the
shareholders are tenants whoLEASEtheir
apart-ments from the corporation The relative size of
the apartment that a shareholder-tenant leases
determines the proportion of the corporation’s
STOCKthat that shareholder owns Each
share-holder-tenant pays a monthly assessment, based
upon his or her proportionate share of the
stock, to cover the principal and interest on the
building mortgage, taxes, and maintenance
costs
History
The development of condominium and
coop-erative housing arrangements accelerated with
increasing costs of REAL ESTATE, inflation, in-creased urbanization, and population growth
Until the 1960s, the condominium as a separate form of ownership was relatively unknown in the United States The development of con-dominiums was hastened when theFAIR HOUSING ACT OF 1968 (42 U.S.C.A § 3601 et seq.) authorized the use of mortgage insurance, established under the National Housing Act (12 U.S.C.A § 1701 et seq [1934]), on one-family units in multiple-one-family structures
Advantages
Some advantages of cooperative or
condomini-um ownership are ownership interest in the premises; sharing high building site and main-tenance costs; INCOME TAX deductions for the interest and taxes paid by individual owners;
decreased risk of personal liability of the various members; and increased choice of location, since high real estate costs frequently preclude individual housing on expensive sites
Condominium Ownership
An individual who purchases a unit in a condominium receives title to such unit in FEE SIMPLE, owning it outright The owner has all legal rights incident to ownership, including the right to sell, absent a RESTRICTIVE COVENANT
limiting its use
Title to a condominium also encompasses ownership of the land and common areas with the remaining unit owners The individual owner has certain rights, such as use of the common areas, and certain obligations, such as
A condominium development near Denver, Colorado The condominium as
a form of ownership agreement has grown rapidly in popularity since the 1960s.
AP IMAGES CONDOMINIUMS AND COOPERATIVES 77