Cybercrime and the Law: Challenges, Issues, and Outcomes
The purpose of this paper is to identify the key challenges in tackling modern economic and cyber crimes, evaluate the existing legal and enforcement mechanisms in place, and propose a way forward to address these challenges. The paper analyses the main difficulties posed by the borderless, complex and rapidly evolving nature of modern economic and cyber crimes.
This allows the key shortcomings of the present legal and enforcement infrastructure to be identified. The paper will be of interest to law enforcement agencies, prosecutorial authorities and national policy makers.
- 1. Introduction.
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Menon, S. Emerald Group Publishing Limited. The mysterious virus that brings down Iranian power-plants. Do not the average criminal lawyer and the average legal researcher have to address rather more important things, things that happen in the real world and that have physical rather than virtual consequences? I would argue that the answer to both questions is no.
Cyberspace should interest everyone who is involved in criminal law. The classic view of cybercrime, centred on the lonesome, nerdy hacker, is largely based on fiction, a fiction from the s and s. Cybercrime is real crime, and increasingly, real crime has a cyber-element to it.
Cybercrime and the law: challenges, issues, and outcomes | PittLaw
In this paper, I want to investigate the challenges that cybercrime and cyberspace bring to the law, and consequently also to legal research, based on the premise that the Internet has become so fundamental a part of life that it can no longer be ignored by criminal law or research in criminal law. After sketching the characteristics of the Internet and cybercrime and highlighting some tensions that these bring to the functioning of criminal law section 2 , I will discuss the consequent challenges for law and legal research.
At a conceptual level, these challenges are threefold in character: regulatory, normative, and technical. The challenges are inextricably intertwined, however, and I argue that it is the mutual shaping of regulation, norms, and society that should be the focal point of analysis section 3. This leads to the conclusion that criminal-law research requires a broad perspective on regulation and a multidisciplinary approach section 4. The Internet is global and allows for real-time connections between people regardless of their location.
Hence, time, distance, and borders are much less important than in traditional crime. Being a network of networks that allows for automated processing and transfer of digitised data at the speed of light, on an unprecedented scale, the Internet is transforming many aspects of society. Because of these characteristics, it also provides special opportunities to commit crimes, which is important from a criminological perspective:. Routine activity theory and, indeed, other ecologically oriented theories of crime causation thus appears of limited utility in an environment that defies many of our taken-for-granted assumptions about how the socio-interactional setting of routine activities is configured.
The committing of these crimes is facilitated by a combination of many characteristics of the Internet, which together create a unique opportunity structure for cybercrime. These characteristics are: global reach, deterritorialisation, flexible network structure, anonymity, distant offender-victim interaction, manipulability of data, automation of crime, massive scale, aggregation of negligible damages, targeting information as a commodity, limitations to capable guardianship, and rapid innovation cycles.
Convictions for these crimes are still relatively rare compared to other crimes , but this does not mean cybercrime is not prevalent. Sometimes, cybercrimes can be relatively easily dealt with in the existing legal system.
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A cyber-variant of a traditional crime can be punishable under an existing provision, such as forgery,  or it can be made punishable by reformulating the provision e. However, it is not easy to bring more computer-specific offences, such as those targeted at the confidentiality, integrity, or availability of computer systems, under traditional provisions, so that computer-specific offences need to be introduced in the criminal law. And legislatures cannot rest at that: on-going developments in computer technology require the legislature to remain ever vigilant to fill gaps in criminalisation, for example, to deal with new forms of identity theft or search-engine manipulation.
More important even than gaps in substantive law, are potential limitations in procedural law. Moreover, mutual legal assistance is traditionally too slow to deal with investigation in cyberspace, where evidence can be destroyed with a few mouse clicks or moved from Belgium to Belize within seconds. National and international legal instruments are doing their best to fill existing gaps in substantive and procedural law.
INTERNATIONAL JOURNAL OF MANAGEMENT SCIENCE AND BUSINESS ADMINISTRATION
But the problems go deeper than possible gaps in substantive and procedural law. First, cybercrime challenges some fundamental concepts of criminal law. In the s and s, many countries discussed whether computer data should be considered property, mainly with a negative answer, since data are intangible and multiple while property is more physical and has unique ownership. Another example of challenged concepts, at a different level, is the de minimis principle that behaviour should only be criminalised if it causes more than a minimum level of harm.
Some forms of cybercrime may not pass this minimum threshold for individual persons. For example, a computer virus that slows down your computer and that requires some effort to remove, but because millions of people can be affected, the net result could constitute considerable harm at a societal level. And even if the act is punishable in theory, which country will take up investigation and prosecution if a relatively small portion of the global victims, each with small amounts of harm, lives in its jurisdiction?
Second, the investigation of cybercrimes poses considerable problems. Even disregarding the issue of cross-border investigation and mutual legal assistance, investigating and prosecuting a cybercriminal requires substantial effort as well expertise, both of which, in a context of scarce resources, could be dedicated to other crimes that are easier and more efficient to prosecute, or that rank higher on the political agenda. Third, and perhaps most importantly, cyberspace confuses the boundaries of criminal law.
Increasing attention is being paid to cyber-warfare, in addition to risks of cyber-terrorism which have been recognised for some time. The doctrinal distinction between crime, terrorism, and international armed conflicts hinges on the perpetrator an individual, a group, or an organisation associated with a state? The difficulty of attribution presents immense challenges in fashioning an appropriate legal response. For example, which institution should take the lead in the response — the public prosecutor, the security agency, or the ministry of defence?
Resulting interventions are not necessarily focused on preparing a criminal trial, but at taking certain administrative decisions or at simply disrupting possible criminal behaviour. This requires us, among other things, to rethink the legal protection of citizens in the form of new checks and balances in the criminal legal system. While the previous section highlighted some of the more fundamental problems that criminal law faces through the Internet and cybercrime, here I want to tie these problems together at a conceptual level, in order to better understand the challenge of cyberspace for law and legal research.
The aim of law is to regulate society, and criminal law is a particular type of law meant to address particularly pressing social problems that other regulatory instruments cannot sufficiently address themselves. While criminal law mediates between regulator and regulatees, technology mediates between developers or suppliers of technology and technology users. Moreover, the behaviour of people — regulatees and technology users — is also shaped by the norms embedded in particular social contexts, often in the form of institutions cultures, traditions, practices.
This can be schematised as follows:. I suggest that the challenge of cyberspace to the law and legal research is found in all three dimensions of this scheme. In addition, proxy caching may give rise to infringement of the right of public distribution, public policy, public performance and digital performance. Copyright in a work is infringed when the work is copied without the consent of the copyright owner. A copyright law deals with the form in which the work is expressed. As a medium, it allows a person to access a large amount of information and to copy that information in the same state as it is displayed.
The copyright owners have an option to make use of the technology protection measures.
S is indeed a legal framework to protect against third parties circumventing these systems. Technology protection measures may be classified as follows: - access control measures and copy control measures. Examples of access control measures include passwords, encryption and set top boxes.
Cyber Crimes and Laws Challenges
S is used to enable the copyright owners to track, manage or prevent copying of their work, such as digital watermarking system. This system allows the copyright owner to track and identify unauthorized copies made by the original work. The following are the two important legal aspects a D. A provides firstly, that no person shall circumvent a technological protection measure that effectively controls access to a work protected under the Act.
The Second part prohibits trafficking in devices or services for circumventing technology measures that control access. The third part prohibits trafficking in devices or services for circumventing technology measures that protect the rights of a copyright owner. The main focus was on the preparatory activities, because the real danger for Intellectual Property Rights will not be a single act of circumvention by individuals but preparatory activities to produce devices or offer services to circumvent.
The term computer Database has been defined in the Information Technology Act for the first time. Section 43 of the I. Act provides for compensation to the aggrieved party up to one crore rupees from a person who violates the copyright and cyberspace norms. Also Section 66 of I.
Act provides for penal liabilities in such a case. S Agreement, computer programs now qualify for copyright protection just as any other literary work, as well as other forms of I.