Trojan Horse Defense

 When dealing with the law, there are many things that people do not think about. Most people think about standardized crimes such as assault and battery, and murder. However, what about cybercrime or even a hybrid crime that may involve both physical crime and cybercrime. When it comes to cybercrime, just like there is a twinkie defense, there is also a Trojan Horse Defense (TJD), also known as the Some Other Dude Did It (SODDI) defense. This defense is when both actus reas (the act of a crime) and the mens rea (Guilty Mind) are wrapped up together and are blamed on a piece of malicious software known as the Trojan Horse (Bowles & Hernandez, 2015). One may ask how can a crime be blamed on a computer and how would this defense hold up in the court of law?

 With modern technology, more and more people are finding problems with technology. For example, ransomware has become a huge issue. Worms and viruses knock entire enterprises offline, costing them thousands, sometimes millions of dollars in repair. The damages are simply because of maliciously written code that is sometimes so advanced that not even anti-virus/anti-malware or even firewalls always catch it. Unfortunately, people familiar with technology use this to their advantage and claim that the software committed the crime. It is entirely possible. After all, it is not uncommon for bots to send off packets full of malicious codes to unknowing parties who happily click on them, right?

The issue of malware causes a problem because it can cause wholes in court cases. For example, in Connecticut v. Amaro, the defendant was accused of having a computer in her classroom full of pornography due to spyware (McMillan, 2004). During her trial, many mistakes were made, such as not having knowledgeable people about computer forensics testifying, using the hard drive to gain acquisitions from and not a copy, and not even doing a virus scan on the computer. All of these mistakes were vital and cost the defendant her trial and her unborn baby (Bowles & Hernandez, 2015).

      One of the biggest things people have to question if using this defense is, was the forensics done correctly? Were there several known software used? Was a Hash system used? If so, which one? Is it possible that the person who is being accused planted the trojan horse on their computer in order to get away with the crime, and are they mentally sound? Additionally, they have to determine another central question: Is it possible that minute pieces of the virus are left in the computer and could commit the crime (Bowles & Hernandez, 2015? After all, viruses are changing and becoming more intelligent and spreading faster than ever, or is it just someone trying to get away with the crime and blaming it on the old twinkie or the Trojan?


References 

Bowles, S., & Hernandez-Castro, J. (2015, January 1). The first 10 years of the Trojan Horse defense. ScienceDirect. https://www.sciencedirect.com/science/article/abs/pii/S1361372315700059


McMillan, R. (2008, November 21). Spyware case finally closed for teacher Julie Amero. Computerworld. https://www.computerworld.com/article/2529644/spyware-case-finally-closed-for-teacher-julie-amero.html


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