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THE LIFE OF CRACKERS HAS BECOME MORE DIFFICULT

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The Senate news agency reported on May 28, 2021 that the president finally signed Bill 4554/2020, passing Law 14,155 of May 27, 2021, which modified the penal code to specifically deliberate on cybercrime, focusing on:

1. Device Intrusion

2. Aggravated  theft practiced by digital means

3. Electronic fraud

4. Theft by deception  of the elderly or vulnerable

Although the penal code already defines  the offense of hacking a computer device, introduced by Law 12.737 of December 30, 2012, this law aggravated the penalty for this offense to imprisonment from 1 to 4 years and a fine. If it results in economic loss for the victim, the sentence is increased by 1/3 to 2/3. If such intrusion further results in the obtaining of content from private electronic communications, commercial or industrial secrets, confidential information, as defined by law, or the unauthorized remote control of the hacked device, this law increased the sentence to 2 to 5 years and a fine.

With respect to aggravated theft , which is that practiced (i) by destroying or breaking through an obstacle, (ii) through either breach of trust or fraud, (iii) with the use of a false key or (iv) with the help of two or more people,  a paragraph was included,  which reads that the sentence will be imprisonment of 4 to 10 years and a fine, if theft by fraud is committed by means of an electronic or computer device, connected or not to the computer network, with or without the breach of a security mechanism or the use of a malicious program, or by any other similar fraudulent means. In addition, the sentence is increased by 1/3 to 2/3, if the crime is committed using a server kept outside the Brazilian national territory, and by 1/3 to double, if the crime is committed against the elderly or vulnerable.

The law also typifies 2 new crimes. First, electronic fraud, the penalty for which is imprisonment, from 4 (four) to 8 (eight) years and a fine, if the fraud is committed using information provided by the victim or by a third party induced to error through social media, fraudulent phone contacts or by sending e-mail, or any other similar fraudulent means. In addition, the sentence is increased by 1/3 to 2/3, if the crime is committed using a server kept outside the Brazilian national territory and by 1/3, if the crime is committed to the detriment of a public legal entity or popular economy, social assistance or charitable institution.

Then there is the theft by deception  of the elderly or vulnerable, which actually takes advantage of the definition of electronic fraud above and increases the sentence by 1/3 to double, if the crime is committed against the elderly or vulnerable, considering the relevance of the resulting damage.

In addition to the tightening brought by this law for cybercrimes, the law resulting from the “anti-crime package” developed by former minister Sérgio Moro – Law 13,964 of December 24, 2019 – also aggravated progressive sentencing, from closed to semi-open regime and from semi-open to open regime. Nevertheless, progressive sentencing, despite being defended by some jurists and some alleged human rights defenders, ends up contributing to the perception of impunity, since, despite its purpose of focusing on prisoners' resocialization, the currently institutionalized prison system works as a true school of crime and the prisoner simply fails to serve the sentenceentire sentence term  to which they were subject for  their criminal offense.

Finally, below is a demonstrative table comparing before and after the progressive sentencing, after the changes introduced by the “anti-crime package”, which ultimately mitigated impunity. Impunity encourages criminal practices and contributes to the disbelief of society in the applicability of penalties to those who deserve them:

OBJECTIVE REQUIREMENTS

BEFORE

LATER (NOW)

No violence or serious threat

1/6 of the sentence

First-time Offender - 16% and Repeat Offender - 20%

Through the use of violence or serious threat

1/6 of the sentence

First-time Offender - 25% and Repeat offender - 30%

Heinous or similar crime

First-time Offender - 2/5

Repeat offender - 3/5

First-time Offender - 40% and 50%, if there is death

Repeat offender – 60% to 70%, if there is death

Individually or collectively commanding a criminal organization that is structured to commit a heinous or similar crime

1/6 of the sentence

50% of the sentence

Private militia

1/6 of the sentence

50% of the sentence

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