Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P9 docx

18 U.S.C.A. § 1030. Section 225 of the act is also known as the Cyber Security Enhancement Act of 2002. The Department o f Justice’sComputerCrime and INTELLECTUAL PROPERTY Section is responsible for prosecuting computer-crime cases. Many of those cases invol ve i nstances of co m puter hackin g and other unauthorized intrusions, as well as software PIRACY 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 maliciou s 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 studentRobertT.Morriswasconvictedof 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 68 COMPUTER CRIME MOD 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 bre ak-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 sen tenced 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMPUTER CRIME 69 Jersey 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. Sm ith 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 investigat ors were initially stym ied. 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 70 COMPUTER CRIME that 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 circumventing 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, al ong with two unnamed Russian con- spirators, had accessed more than 130 million cred it and debit card numbers between 2006 and 2008. Some were used for unauth orized 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 th e SECRE T SERVICE to identify his former online conspirato rs who tr aded and sold card numbers in th e black mark et. 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 co rporations 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. v COMSTOCK, 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 18001800 18501850 18751875 19001900 18251825 ◆◆ ❖❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMSTOCK, GEORGE FRANKLIN 71 New 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 GENERAL of 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 represen tative at the New York Const itutional Convention. Comstock pursued interests in the field of education in addit i on 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 or ABORTION, 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 the EMANCIPATION of 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 al so 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 abou t 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 and BIRTH CONTROL as 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 service s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 COMSTOCK LAW OF 1873 and 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 attempted CENSORSHIP of 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 Comst ock 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 on FIRST AMENDMENT grounds. 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 some one previously incarcerated. An abbreviation for contra, which means against. To show the pros and cons of a particular iss ue mean s 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 a HOMICIDE. There is no requirement that every other person be GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONCEALMENT OF BIRTH OR DEATH 73 deprived 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 an ACQUITTAL under some statu tes. 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 co nceal 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 Di spute 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. When CONCILIATION is 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 evidenc e 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 74 CONCILIATION the 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 in PROPERTY 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 ; and TENANCY 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 possess CONCURRENT 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. A CONCURRENT RESOLUTION does not have the legal impact of a JOINT 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 WRITS ordering the arrest of a perso n whose whereabouts were unknown, or it could issue CONCURRENT writs for service on several defen- dants in a single lawsuit. CONDEMN To adju dge 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 through EMINENT DOMAIN , owners must be paid JUST 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONDITION 75 transaction 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 co ndition 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 MARRIAGE of 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 76 CONDITIONAL A conditional payment is the payment of a debt or obligation contingent upon the perfor- mance of a certain specified act. The right to demand bac k 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 ownership 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 direc tly or through a professional manager. The owners of the individual units are jointly respo nsible 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 who LEASE their apart- ments from the corporation. The relative size of the apartment that a shareholder-tenant leases determines the proportion of the corporation’s STOCK that that sha reholder 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 1960 s, the condominium as a separate form of ownership was relatively unknown in the United States. The development of con- dominiums was hastened when the FAIR 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-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, abs ent 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CONDOMINIUMS AND COOPERATIVES 77 . easy prey, mail-order service s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 COMSTOCK LAW OF 18 73 and low-rent shops that sold cheaply produced photographs of nude women. Typically poor and uneducated,. and individual fines of $250,000. Supporters of MOD’s civil liberties questioned whether the gang members had done anything truly illegal. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 68 COMPUTER. ascertainment of whether the child was stillborn or was born alive and died as a result of a HOMICIDE. There is no requirement that every other person be GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONCEALMENT