Theft via the Internet and the Application of Hadd
Being a revelation from Allah, Islam denies all forms of oppression, deception, plunder, injustice, theft, etc. Islam acknowledges certain guidelines to be acted upon, these guidelines rule the actions of humans. These guidelines and bases are valid for every time and place, because of their pliability, perfection, comprehensiveness, and acknowledgment of the characteristics and nature of human beings.
Theft through the Internet is unaccepted in Islam. With its different forms, whether what is called plagiarism or stealing money by way of credit cards or withdrawing cash from ATMs, theft is all impermissible. People should necessarily avoid these forms of larceny if they sincerely want Islam to become dominating.
In his answer to your question, Dr. Rajab Abu Maleeh, Shari`ah consultant at IslamOnline.net, stated,
Linguistically, theft means stealthy appropriation of another’s property. Technically, it means the sane adult person’s secret appropriation of a safeguarded nisab (the minimum amount of property stolen, which entails execution of the prescribed penalty for theft) — that is, taking it from the safe place where the money is kept — or secret appropriation of an amount equal to the nisab owned by another, while there is not the least doubt that it does not belong to him or her (the thief).
according to the preceding definition, it becomes clear that certain conditions should be available in order to apply the hadd (ordained penalty) of theft. These conditions include the following ones:
1. The thief should be adult and sane, because the penalty is applied neither to an insane person nor to a non-adult. This is because the application of penalty is dependent upon taklif (legal accountability for one’s actions).
2. The thief should be intending theft, because the penalty is not applied to a mistaken person or to an inadvertent person. Prophet Muhammad (peace and blessings be upon him) said, “My Ummah will not be held accountable for [unintentional] mistakes, forgetfulness, and what they are forced to do” (At-Tabarani and Ad-Daraqutni).
3. The stolen money must reach the nisab (i.e., an amount equal in value to a quarter of a gold dinar [about 1.625 grams]). Hence, if the stolen money is less than that, the penalty for it is less than the hadd. Al-Bukhari reported in his sahih that the Prophet (peace and blessings of Allah be upon him) said, “The hand is to be cut off for [stealing] a quarter of a dinar and upward.”
4. The whole money is owned by another, and nothing of it — either a part of it or all of it — is owned by the thief.
5. Taking of the money takes place stealthily and not by way of extortion or banditry.
6. The stolen thing must be a valuable property: that is, having an acknowledged (material) value in Islamic Shari`ah, unlike the unvalued property, such as pigs, wine, and the like, in case they are owned by a Muslim.
7. The thief is not compelled to do so, as in times of famine, during which the thieves steal to eat and to avoid starvation to death.
8. Lack of any ties of kinship between the thief and the owner of the stolen money, such as when the thief is the owner’s parent, child, wife, or husband, though none of these ties remove the burden of such a sin in the Hereafter or the penalty in the present life. However, the penalty then does not amount to the hadd (e.g., cutting off the hand).
9. The money should be in a safe place (any place fitting for keeping it), which is a guarded place. Such keeping is either through protection of the place where the money is (including every place intended for keeping and where none is allowed to enter, except through permission, such as houses, shops, coffers, and strongboxes) or through appointing a guard to protect it. Here, the reference in judging the safeness is custom, because neither the Shari`ah nor the language has given a definition of it. Besides, protection differs according to the difference in property, circumstances, and times. However, Imam Abu Hamid Al-Ghazali defined it as the thing that the owner is not considered wasteful by using it.
Reviewing the preceding definition of theft and the conditions for application of the penalty to the thief, one can clearly divide theft through the Internet into the following two types:
First, theft of information (plagiarism): meaning that a person derives information published through the Internet and assumes that it belongs to him or her, without referring to its source or copies it without having permission from its owner, and then sells it with the aim of achieving material gain therewith. All these practices are prohibited and impermissible, as well as eating up people’s property unjustly. This opinion is adopted by almost all contemporary fuqaha and by fiqh academies, most important of which is the Organization of Islamic Conference (OIC) Fiqh Academy.
However, the preponderant opinion is that the hand (of the thief) is not to be cut off in stealing information, since ordained penalties are lifted under the occurrence of mere suspicion. Moreover, some may view it permissible being a means of spreading knowledge, or on the grounds that intellectual rights are not property. And though such arguments are disproved and rejected, still no cutting off (of the hand) is to be applied in case of such theft. Rather, a disciplinary punishment — moral and material — is to be applied.
Second, theft of cash money by way of credit card (either through hacking or stealing the card itself along with the password and transferring amounts of money to one’s personal account or withdrawing cash from the ATM) necessarily entails cutting off the hand of the thief, but not without observing the conditions stated above for the application of the ordained penalty of theft. This is in line with the Qur’anic verse in which Almighty Allah says,
(As for the thief, both male and female, cut off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. Allah is Mighty, Wise.) (Al-Ma’idah 5:38)
This is also indicated by sayings and acts of the Prophet (peace and blessings be upon him).
Finally, the Muslim should avoid theft in all its forms and shapes: whether it is moral or material, and whether the cutting off (ordained penalty) is applicable to it or not.
It was narrated by Abu Hurairah (may Allah be pleased with him) that the Prophet (peace and blessings be upon him) said,
“Allah curses the thief who steals an egg [or a helmet], for which his hand is [to be] cut off, or who steals a rope, for which his hand is [to be] cut off.” (reported by Al-Bukhari and Muslim).
It was also narrated by Ibn `Abbas (may Allah be pleased with them both: him and his father) that the Prophet (peace and blessings be upon him) said,
“A fornicator does not commit fornication while he is a believer, and the one who drinks does not drink wine while he is a believer, and the one who steals does not steal while he is a believer.” (reported by Al-Bukhari)