Analysis of the Development of Cyber Crime in Indonesia

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Analysis of the Development of Cyber Crime in Indonesia

Rr. Dijan Widijowati

Universitas Bhayangkara Jakarta Raya, Indonesia

1[email protected]

*corresponding author

ARTICLE INFO ABSTRACT

Article history:

Received 31 Ags 2022 Revised 6 Sept 2022 Accepted 13 Sept 2022

The development of information and communication technology has both positive and negative impacts. Advances in information technology and technology can also be used by perpetrators of criminal acts (cyber) in completing their evil intentions so that today to commit crimes between countries, the perpetrator of a crime does not have to be present in a particular country, but he can do it still by being in his country even in his bedroom.

This study aims to analyze the development of Cyber Crime crimes in Indonesia. The research method used by the author is a normative research method with a descriptive model that explores aspects of legal regulations related to cybercrime so that the results of the author's research are expected to provide a minimum contribution for parties who wish to explore cyber law issues in Indonesia. The research results show that the development of computer crime is now not limited to illegal access. Still, the development of the scope of crimes and cyber crimes has entered the realm of computer security systems and even entered business activities in cyberspace, known as e-commerce fraud, tax, and stock exchange fraud to intellectual property right fraud. Apart from determining the type of prison sentence for perpetrators of cyber crimes, alternatives such as social work punishment and supervision punishment can also be found..

Keywords:

Information and Communication Technology (ICT), Cyber Crime, Internet.

A. Introduction

The phrase "cybercrime" describes illegal conduct involving computers or computer networks that serve as tools, targets, or scenes of crime. Online auction fraud, check fraud, credit card fraud, confidence fraud, identity fraud, and other types of cybercrime are among them [1]. Although computers or computer networks are the primary component of cybercrime, this word is also used to describe more conventional criminal actions in which computers or computer networks are utilized to help or enable the crime to occur [2].

Technological progress has developed so rapidly. Technology which is a product of modernity, has experienced a tremendous leap. Because it is so fast, it is human, and the creator of the technology is confused about controlling it; it can even be said that technology has reversed direction to control humans [3]. A revolution is taking place, and we are in it. Like other revolutions, this revolution also brought about rapid changes, tending to overturn long-established orders and dismantle old paradigms [4].

A new global civilisation, unrestricted by borders, has emerged as a result of the development of information technology, making previously unimaginable feats feasible. This progress, however, has also given rise to new concerns with the proliferation of cybercrime, a form of sophisticated crime [5]. Cybercrime, which takes advantage of digital tools like computers and the web, has reached terrifying proportions. Pornography, computer crime, and even digital terrorism, garbage information wars, and hackers are all horrifying downsides brought about by the same information technology that has brought about a revolutionary corporate world (the digital revolution era) [6].

This revolution, which is now becoming more intense and unprecedented in the history of humankind, has a prominent feature, namely speed (acceleration). There is a race to narrow the distance and attempts to conquer space through time. This revolution is the revolution of information and communication technology (ICT) [7]. The ICT revolution, which began with the

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discovery of a computer device, has formed a world of its own becausethe website interconnection or group network system in ICT has become a separate extensive sub-system, which is a miniature world [8].

The presence of an information society, which is believed to be one of the most important goals of the global community in the third millennium, is characterized, among other things, by the increasing prevalence of the Internet in various aspects of human life, both in developed and developing nations. Developing countries, including Indonesia. In turn, this phenomena has established "information" as an indispensable and lucrative economic commodity. As a pioneer in the usage of the Internet, the United States has shifted its economic paradigm from a manufacturing-based economy to a service-based economy in response to this development (a manufacturing-based economy to a service-based economy). This transition is characterized by the decline of traditional legal documents and the rise of information as a legal resource in the American service-based economy [9].

In addition, the internet gives rise to new activities that cannot be fully governed by the existing legislation (the existing law) due to the features of the internet, which does not recognize geographical boundaries and functions wholly virtually (virtually) [10]. This has made the public aware of the necessity for legislation governing internet-related activity [11]. The existence of the internet not only inspires new hopes, but also new fears, such as the introduction of new, more complex crimes in the form of cybercrime, such as pornographic websites and privacy invasions [12]. It turns out that as the Internet has developed, it has facilitated the growth of antisocial and illegal behavior that was before unthinkable. As one view states, "crime is a product of society itself," we might understand this to mean that society gives birth to crime. The greater a civilization's intellectual level, the more complex the crimes that may occur in that society [13].

In discussing this paper, we make more specific about the development of crime, especially related to Cyber Crime orCyber Crimethat occurred in Indonesia. Moreover, we also discuss the process of criminalizingCyber Crime perpetratorsfrom the perspective of positive criminal law in Indonesia. The statement above underlies the importance of knowing the development of crime today, especially cybercrime orCyber Crime.

B. Methods

The method used in this research is the normative juridical research method. Normative juridical research is the way or procedure used to solve research problems by examining secondary data.

Secondary data, namely data sourced from data that has been documented in the form of legal materials. This study uses a statutory approach (the statute approach), a fact approach, and a legal concept analysis approach (analytical and conceptual approach). Problems are studied using legal interpretations and then given theoretical arguments based on existing legal theories and concepts.

For data collection techniques in this study, the authors use data collection methods, namely:

Library Research (library research). In connection with the problems in this study, data collection will be carried out through library research collected through literature research, namely by studying the provisions of the law regarding the analysis of the development of cybercrime in Indonesia. All collected data is analyzed through interpretation techniques (interpretation) linked to the cases studied with the relevant laws and regulations provisions. By doing legal reasoning, one can conclude the discussion in this thesis through deductive reasoning, namely the reasoning process to conclude in the form of principles or attitudes that apply based explicitly on general facts. This reasoning process is called deduction. Deductive conclusions are formed employing deduction. That is, starting from general matters and moving on to specific matters or lower matters, the deductive conclusion formation process can start from a proposition or law to factual matters.

C. Results And Discussion

A. History of the Development of Cyber Crime in Indonesia

Cybercrime in Indonesia has occurred since 1983, especially in the banking sector [14]. In the

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program piracy, cracking, unauthorized use of other parties' credit cards (carding), banking fraud, pornography, including crimes against domain names. In addition, pornographic image smuggling via the Internet (cyber smuggling), pagejacking (mouse capturing), spam (junk mail), intercepting, cybersquatting, and typosquatting are also computer-related crimes in Indonesia. In addition, crimes against computer systems or networks include cracking, defacing, denial of service (DoS) and distributed denial of service (DDoS) attacks, virus (worm) propagation, and logic bomb installation [15].

Law enforcers on a national and worldwide scale, including business professionals, merchants, customers, and end-users, now devote a major portion of their time to combating internet crime. In most instances, cybercrime begins with the exploitation of computer hosts and networks. Therefore, fraudsters and invaders encounter the network, particularly TCP/IP-based networks [16]. Currently, although conventional criminal law, as applicable in Indonesia, can be used by judges as a legal basis for trying cybercrime perpetrators, in practice, there are many limitations, both in terms of the elements of the crime and criminal responsibility. As a result, many perpetrators escaped prosecution, or even if they were sentenced based on research results, all perpetrators were sentenced to prison terms. At the philosophical, theoretical, normative, and empirical levels, imprisonment is a type of punishment with many weaknesses because the implementation of imprisonment, especially in Indonesia, is inadequate.

The World Bank believes that law enforcement is weak in dealing withcybercrimein Indonesia because it still needs laws and regulations regarding developing new-generation informatics applications. Only now, there are no laws and regulations precisely becausecyberspaceregulations require careful and in-depth studies so that they are genuinely on target according to the development of people's life behavior so that their implementation does not cause stagnation [17].

In addition, the nature of cyber is global crimes, namely crimes that cross national borders or crimes without territorial boundaries [18].

Various kinds of cybercrime activities start from the mild scale to the heaviest. Dimitri Mahayana [19] said that Indonesia could get 42,000 attacks in cyberspace daily. This tends to undermine the security of companies and the state and hinder individual development (community in general) given the mobility of internet use, which tends to increase daily. The level of cybercrime in Indonesia is worrying, placing Indonesia in the order of one country with the most cyberattacks [20].

The various cases that have occurred in cyberspace have reached an alarming level. The state should, as early as possible, seek protection for the wider community, bearing in mind that Indonesia is a large country, which allows its people. Most of them are cyberspace (internet) users, including the government. Therefore, as a form of protection, the government as the policyholder should have "sophisticated" safety nets to stop as soon as possible or at least minimize the occurrence or prevent the possibility of criminal acts occurring in cyberspace. This includes making various policies that can ensnare perpetrators of cybercrime.

B. Cyber Crime Actors in the Perspective of Positive Indonesian Criminal Law

As a result of advancements in information technology, things that were once thought impossible are now within reach, giving rise to a new borderless global civilisation. Cybercrime is a sort of sophisticated crime that has increased in prevalence alongside this progress [5]. The prevalence of frightening levels of cybercrime, which makes use of digital resources like computers and the internet, is alarming. The very same information technology that has brought about a revolutionary corporate world has also brought about some horrific negative side effects, such as pornography, computer crime, digital terrorism, garbage information wars, and hackers (the digital revolution era).

Most cybercrime acts in Indonesia are not covered by particular legal standards in laws and regulations; as a result, cybercrime trials in Indonesia utilize both the Criminal Code and laws outside of the Criminal Code. Cybercrime can be prosecuted using the provisions regarding the crime of counterfeiting (as outlined in Articles 263 to 276), the crime of theft (as outlined in Articles 362 to 367), the crime of fraud (as outlined in Article 378 to Article 395) [21], and criminal acts of damage to goods through an expansive interpretation of these articles.

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This section discusses how Indonesia applies criminal law laws in the prosecution of cybercriminals:

1) Application of Criminal Code articles in cases where computers are the target of crime and cases where computers are used as a means of crime ;

a) Website destruction category (Article 406 Paragraph 1)

Article 406 Paragraph (1) of the Criminal Code is a legal basis aimed (threatened), for example, at hackers, because this hacker activity is considered to have caused tremendous damage or loss to a person's business, institutional, or state interests. The authorities consider that what the hacker did cause harm to other people, one of which was in the form of damage or causing other items to malfunction. If this item includes a website, then it is this website that is damaged.

b)Cyberporn (Article 282 Paragraph (I), (2), (3) of the Criminal Code)

Against pornography on the internet for business purposes, for example, the sites

"www.playboy" and "www.pondokputri.com", article 282 paragraph 3 can be applied. In article 282, the difference in paragraph (1), the perpetrator must know that it is written and so on, it violates the feeling of decency, while in paragraph (2), there is no need to know; it is enough if there is serious reason to suspect that such writing and so on, it violates decency.

c)Data Leakage (Articles 112, 322, 323 of the Criminal Code)

When the KPU's website, which incidentally represents the state in holding significant events such as elections, is broken into by hackers, the crimes committed by these hackers can be categorized as fulfilling the element of cybercrime. Because there is an action in the form of

"leaking secrets", it is subject to Article 112. Article 322 and Article 323 of the Criminal Code, which is a crime of disclosing company secrets or being obliged to keep professional or position secrets.

d)Data Theft Category (Article 362 Criminal Code)

One form of cybercrime is "data theft", data theft on the internet (Joycomputing;) meaning that someone using a computer illegally or without permission and using it beyond the authority given, this action can be categorized as a crime of theft. Although the term "data theft" is categorized as a conventional crime in general, namely theft, it is subject to Article 362

.

e)Underhand Competition Category (Article 382 bis KUHP)

This article addresses the issue of cybersquatting, or the fraudulent use of a domain name to harm others. The Supreme Court of Indonesia ruled on January 24, 2003 in Supreme Court Decision No.1082 K./Pid./2002 that the registration of the domain name mustika-ratu.com by PT.

Mustika Ratu constituted the crime of fraudulent forging under Article 382 bis of the Criminal Code. Therefore, the court imposed a 4-month prison term against the defendant (Chandra Sugiono). The Supreme Court's decision effectively overturned the Central Jakarta District Court's decision to acquit the defendant [22].

f) Fraud Category (Article 378 Criminal Code)

Fraud with credit cards (Credit Card Fraud) on the internet this crime is often happening lately, namely identity theft or using someone else's identity to fulfill one's interests. Other people's identities are used maliciously, harming others whose identity is stolen or used. Identity theft and fraud. For identity theft schemes, namely obtaining and using other people's data to commit fraud or fraud for economic interests [23].

2) Application of statutory provisions outside the Criminal Code to adjudicate cases where computers are used as a means of crime.

In trying cases of crimes against data or computer systems up to January 31, 2005, based on provisions of laws and regulations outside the Criminal Code. These laws are Law Number 7 of 1987 concerning Copyright and Law Number 36 of 1999 concerning Telecommunications.

a) Law Number 7 of 1987 Concerning Copyrights

In 1990, the provisions of Copyright Law No. 7 of 1987 were applied to the piracy of the Word Star version 5.0 computer program. The Bandung District Court sentenced the defendant to imprisonment and a fine for violating Article 11 paragraph (1) of the letter k, Article 14 letter g,

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Presidential Decree of the Republic of Indonesia Number 25 of 1989, and Article 55 paragraph (1) and Article 64 of the Criminal Code. The Bandung High Court's ruling supported this conclusion.

Article 11 paragraph 1 letter k regulates computer programs as specific copyrights.

b)

Law

Number 36 of 1999 concerning Telecommunications.

In 2004, the Telecommunications Law No. 36 of 1999 was used in the case of the Public Commission (KPU) website intrusion. The Central Jakarta District Court found Dani Firmansyah guilty of violating Article 22 letter c jo. Article 50 of Law Number 36 of 1999 regulating Telecommunications and sentenced him to jail.

c)

Law

Number 32 of 2002 concerning Broadcasting Regulates criminal acts as follows:

1. Article 57 jo. Article 36, paragraph (5), threatens punishment for broadcasts that are slanderous, inciting, misleading, and/or lying; highlighting elements of violence, obscenity, gambling, abuse of narcotics and illegal drugs; or oppose ethnicity, religion, race, and between groups;

2. Article 57 jo. Article 36 paragraph (6) threatens punishment for broadcasts that make fun of, belittle and/or ignore religious values, Indonesian human dignity, or damage international relations;

3. Article 58 jo. Article 46 paragraph (3) threatens criminal penalties for broadcast commercial advertisements which contain promotions related to the teachings of a religion, ideology, personal and/or group, which offend and/or demean other religions, other ideologies, other individuals, or groups. Other; promotion of liquor or the like and addictive substances or substances; cigarette promotion demonstrating the shape of a cigarette; things that are contrary to social decency and religious values; and/or exploitation of children under the age of 18.

d) Law Number 11 of 2008 concerning Information and Electronic Transactions (UU ITE).

The scope of the ITE Law material generally includes electronic information and documents, sending and receiving electronic mail, electronic signatures, electronic certificates, and the operation of electronic systems. In terms of the type of crime (strafsourt), in the ITE Law, there are only two main types of punishment that are threatened, namely imprisonment and fines, which are threatened in a mixed manner, namely combining alternative and cumulative systems [24]. Based on this system, the judge has no choice but to impose a prison sentence and a fine, either one or both. The judge only has the opportunity to be able to determine the severity or severity of the two types of crime, namely to determine how many years and how much the fine is in rupiah.

3) Application of articles in laws outside the Criminal Code to adjudicate cases involving the use of computers as a means of crime.

In its development, currently, there are laws relating to sophisticated technology crimes in the field of information and telecommunications. Provisions of laws outside the Criminal Code that are used as a basis for adjudicating crimes that use computers are Law Number 3 of 1971 concerning the Eradication of Corruption Crimes and Law Number 14 of 1967 concerning Banking.

An example of a cybercrime case is the case of Dani Firmansyah, who was a suspect in hacking the website http://tnp.kpu.go.id belonging to the KPU on April 17, 2004. The court stated that the defendant Dani Firmansyah had been legally and convincingly proven guilty of committing a crime

"without rights, illegally, or manipulating access to special telecommunications networks" and sentenced the defendant to imprisonment for 6 (six) months and 1 (one) day.

With the decision of the Panel of Judges at the Central Jakarta District Court, the Panel of Judges has made a legal breakthrough by admitting electronic evidence presented to the court as valid evidence which is the source of the judge's conviction for the guilt of the defendant Dani Firmansyah. Electronic evidence has not been explicitly regulated in laws and regulations.

However, juridically Dani Firmansyah has violated the provisions stipulated in the formal offenses of the Telecommunications Law, namely illegally acting without rights and authority.

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Barda Nawawi Arief remarked that this pervasive criminal danger is also evident in the Indonesian Criminal Code, both historically and currently. The fear of incarceration for offenders of cybercrime in the Criminal Code Bill is also quite strong; in fact, there is not a single form of offense that is not penalized by imprisonment. Based on a comparison between the results of a research of 56 criminal laws of other nations with provisions in Indonesian criminal law and the Criminal Code Bill, it can be shown that the kind of jail term is the most reliable principal penalty in criminal policy in most countries.

Even though imprisonment is the main punishment that is threatened and carried out by the majority of countries, from the past until now, the effectiveness of imprisonment has been doubted.

Djisman Samosir's research at the Cipinang Penitentiary in 1990 found that 85 out of 100 inmates studied stated that imprisonment was not scary because before committing a crime, they already knew about the risks of their actions, namely being sentenced to prison. Because of this, prison sentences are increasingly being scrutinized by penologists. The results of Roger Hood's research in England on "research of the effectiveness of punishment and treatment" show that imprisonment is a minor effective punishment. This low imprisonment effectiveness occurs in all convicts ages [25].

The results of this study indicate that fines are more successful than probation or imprisonment for offenders who are the first to commit a crime, and this success covers all ages. Most studies show that long-term imprisonment is unsuccessful compared to shorter terms as an alternative punishment. The development of convicts in open institutions is more effective than in closed institutions. The results of this study are also in line with the conclusions of [26], that based on the results of a survey on the implementation of criminal outcomes and actions, it turns out that a humane treatment system (for example, probation) is slightly more effective in reducing the possibility of repetition of crimes (recidivism) than with other forms of crime.

According to Barda Nawawi Arief, imprisonment not only results in deprivation of liberty but also has negative consequences, in which convicts will become even eviler after leaving prison.

Muladi believes that imprisonment causes dehumanization, carries a risk of imprisonment, and creates a "bad label " (stigma). Even so, theoretically, imprisonment can positively affect general prevention, but the large number of prison sentences imposed by the courts does not reduce the frequency of crimes. Meanwhile, in the context of unique prevention, recidivists (as an indicator of special prevention) throughout Indonesia are very small after being sentenced to prison.

Based on the description of the pros and cons of the application of imprisonment, imprisonment is still needed in the criminal justice system. It is appropriate as a threat to perpetrators of cybercrime in Indonesia. However, its imposition must be limited based on certain principles and requirements and supported by the individualized conception of sentencing. According to Barda Nawawi Arief, the existence and justification of imprisonment in Indonesia have never been questioned. In general, what is at issue is the severity or lightness of the prison sentence and the formulation system in the law. The appropriateness of criminal threats against perpetrators of cybercrime is also based on the considerations stated by Barda Nawawi Arief that these actions are contrary to the decency, religion, and morals of Pancasila, endanger or harm the life of the community, nation, and state; and hinder the achievement of national development.

D. Conclusion

The exponential growth of computer crime and cybercrime is directly proportional to the advancement of computer technology and developments in the cyber realm. The development of computer technology that has reached the fifth generation and the development of computer technology that has reached the second generation have made it easier for everyone to access various information in cyberspace, not just those who commit computer crimes and cyber crimes.

If, in the beginning, the development of information technology was limited to illegal access, in recent developments, the scope of crimes and Nayantara crimes have entered the realm of computer security systems and even entered business activities in cyberspace, which are known as e-commerce fraud, tax, stock exchange fraud to intellectual property fraud, property right fraud.

Law of the Republic of Indonesia Number 11 of 2008 is necessary for the Indonesian state because currently, Indonesia is one of the countries that use and utilizes information technology wisely and efficiently, and factually does not yet have many legal provisions, especially from aspects of

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application of imprisonment is still necessary for the criminal justice system. It is worthy of being threatened against perpetrators of cybercrime in Indonesia. However, the imposition must be limited based on certain principles and requirements and supported by the individualized conception of sentencing. Alternative to imprisonment ( alternative to custodial sentence ) should be based on realistic societal considerations. Types of punishment that are appropriate to replace imprisonment for perpetrators of cybercrime in Indonesia are social work punishment and supervision punishment. Even so, it does not mean that every perpetrator of cybercrime in Indonesia can be sentenced to social work or supervision. In some instances, imprisonment is still relevant. Determination of the type of punishment imposed depends on the condition of the perpetrators of the crime, the losses incurred, and the feeling of the law in society

References

[1] M. Yar, “The Novelty of ‘Cybercrime’ An Assessment in Light of Routine Activity Theory,” Eur. J. Criminol., vol. 2, no. 4, pp. 407–427, 2005.

[2] C. D. Marcum and G. E. Higgins, “Cybercrime,” in Handbook on crime and deviance, Springer, 2019, pp. 459–475.

[3] P. Taylor-Gooby, “Postmodernism and social policy: a great leap backwards?,” J.

Soc. Policy, vol. 23, no. 3, pp. 385–404, 1994.

[4] R. Silberglitt, P. S. Antón, D. R. Howell, A. Wong, and N. Gassman, The global technology revolution 2020, in-depth analyses: Bio/nano/materials/information trends, drivers, barriers, and social implications, vol. 303. Rand Corporation, 2002.

[5] A. Wahid, “Kejahatan Mayantara (cyber crime),” 2005.

[6] R. Raodia, “Pengaruh Perkembangan Teknologi Terhadap Terjadinya Kejahatan Mayantara (Cybercrime),” Jurisprud. Jur. Ilmu Huk. Fak. Syariah dan Huk., vol. 6, no. 2, pp. 230–239, 2019.

[7] E. Indrayani, “Pengelolaan sistem informasi akademik perguruan tinggi berbasis Teknologi Informasi Dan Komunikasi (TIK),” J. Penelit. Pendidik., vol. 12, no. 1, pp. 51–67, 2011.

[8] T. R. R. Nitibaskara, “Ketika kejahatan berdaulat: sebuah pendekatan kriminologi, hukum dan sosiologi,” 2001.

[9] A. Latifulhayat, “Cyber Law dan Urgensinya bagi Indonesia,” 2000.

[10] A. H. Barkatullah, Hukum Transaksi Elektronik di Indonesia: sebagai pedoman dalam menghadapi era digital Bisnis e-commerce di Indonesia. Nusamedia, 2019.

[11] D. A. Setyawati, D. Ali, and M. N. Rasyid, “Perlindungan Bagi Hak Konsumen dan Tanggung Jawab Pelaku Usaha Dalam Perjanjian Transaksi Elektronik,” Syiah Kuala Law J., vol. 1, no. 3, pp. 46–64, 2017.

[12] M. Zulaeha, “Hukum Transaksi Elektronik sebagai Panduan dalam menghadapi Era Digital Bisnis E-Commerce di Indonesia,” Huk. Transaksi Elektron. sebagai Pandu.

dalam menghadapi Era Digit. Bisnis E-Commerce di Indones., 2017.

[13] A. K. Cohen, “The concept of criminal organisation,” Brit. J. Criminol., vol. 17, p.

97, 1977.

[14] M. Reksodiputro, “Kejahatan Komputer: Suatu Catatan Sementara dalam KUHP Nasional yang Akan Datang,” Prasaran dalam Lokakarya tentang Bab-Bab Kodifikasi Huk. Pidana, Diselenggarakan oleh BPHN-Departemen Kehakim. RI, Jakarta, pp. 18–19.

[15] A. W. Laksana, “Pemidanaan Cybercrime Dalam Perspektif Hukum Pidana Positif,” J. Huk., vol. 35, no. 1, pp. 52–76, 2019.

[16] R. Rafiudin, “Internet Foeronsik,” CV Andi Offset, Yogyakarta, 2009.

[17] Y. I. Mahendra, “Regulasi Cyberspace di Indonesia,” 2000.

[18] B. N. Arief, “Bunga Rampai Kebijakan Hukum Pidana Citra Aditya Bakti.”

Bandung, 2002.

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Analysis of the Development of Cyber Crime in Indonesia