Industry experts explain the legal issues of illegal "mining". Can the current laws apply?

The Ministry of Industry and Information Technology's second quarter 2018 cybersecurity threat situation analysis and work summary mentioned that Tencent Cloud's monitoring found that with the rise of "cloud mining", cloud hosts have become the main target for mining virtual currencies such as Monero and Eleven, and the number of cases of misappropriation of cloud host computing resources for "mining" has also increased significantly; the Knowsec security team's monitoring found that "fighting for mining machines" has become one of the important purposes of botnet expansion; the 360 ​​Enterprise Security Technology Team's monitoring found a new type of "mining" virus (mining XMR/Monero), which spread wildly within two months, and illegal "mining" profits amounted to nearly one million yuan.

Regarding the problem that some users have no way to express their grievances after being attacked by the "mining" Trojan virus, Liu Deliang, a professor at the Law School of Beijing Normal University, believes that "the 'mining' Trojan virus occupies other people's computer resources and may involve illegal intrusion into other people's computers. Articles 285 and 286 of the Criminal Law have already stipulated this, but these laws are mainly aimed at large-scale intrusions into computers and servers. Whether the above circumstances can be applied still needs to be considered in specific cases."

So, when a computer is invaded by an illegal "mining" Trojan, can the current laws be applied to protect rights?

"There is no concept of Trojan horse in law. Trojan horse focuses on an act of intrusion. This malicious program is a means. Intrusion is not the goal. Intrusion is for other purposes, which may be to monitor input information, turn on and off cameras, steal bank passwords and other valuable information. As a Trojan horse, it poses extremely serious harm and great threats." Liu Deliang said.

Liu Deliang believes that, in nature, stealing other people's computer resources to illegally "mine" is actually an infringement. However, there are no relevant provisions in the civil law for using Trojans, plug-ins and other programs to invade other people's computers.

"According to my understanding, mobile phones and computers as storage spaces are equivalent to warehouses in reality, similar to the right to use space, which is stipulated in the law, but there is still a blank regarding information storage space. Since the gap in theoretical research has not yet been filled, if the victim wants to seek protection of civil rights and interests and achieve civil relief from the civil law aspect, it cannot be guaranteed." Liu Deliang believes that the gap in civil law has made it difficult for victims to protect their rights.

Liu Deliang is conservative about blockchain and virtual currencies represented by Bitcoin: "In general, we understand that electronic currency is formally issued, users can exchange it for cash, and can be used to purchase products and services, but Bitcoin is different. One type of currency is backed by the state as a credit guarantee, and the other is backed by an enterprise. Bitcoin is special. It is not backed by the state or an enterprise. In some cases, it can be used as a payment voucher and is based on public trust. When encountering some major events, this trust may be lost. Once trust is lost, the future is hard to predict."

"Investing in virtual currency carries speculative implications and is not even recognized in some countries. Without recognizing virtual currency, investment failures are also not protected. But this is different from using Trojan viruses to illegally invade other people's computers. Trojan intrusion is essentially illegal," said Liu Deliang.

Regarding the illegal theft of other people's bitcoins, Liu Deliang believes that "everyone wants to obtain bitcoins through 'mining', and 'mining' is similar to gambling investment. If this is a gamble, then Bitcoin is a kind of gambling money. If someone steals your gambling money, it is also illegal. We cannot say that because gambling is illegal, it is legal to steal gambling money."

In view of the fact that victims of illegal "mining" not only have to face the problem of difficulty in tracing the source of Trojans in protecting their rights, but also the problem of difficulty in applying civil law, Liu Deliang suggested, "It is necessary to overcome great difficulties to quickly find those who produce, disseminate and sell Trojan viruses. This type of Trojan virus can be understood as flammable and explosive items, firearms and ammunition, which are essentially similar. my country already has special controls on firearms and ammunition, but not on Trojan programs. Once an infringement incident occurs in the future, if it is difficult to find the direct user, those who produce, disseminate, sell and use Trojan programs should bear joint and several liability. On the one hand, this is a warning to those who produce, disseminate and sell Trojan programs, reducing the scope of Trojan program production, dissemination and sales; on the other hand, the joint and several liability of relevant personnel is conducive to the victims' rights protection."

Liu Deliang also believes that relevant laws should be continuously improved to adapt to the rapidly developing information age. "Because of legal gaps, it is sometimes difficult for victims to protect their rights, which also reflects that we do not fully understand the nature and harm of similar incidents. Legal workers should conduct sufficient research on this and fill the legal gaps."

(Source: Legal Daily; Author: Legal Network reporter Du Xiao; Legal Network intern Shi Weixin)