Toward a Criminal Law for Cyberspace

Architecture and Background

Susan Brenner - Toward a Criminal Law for Cyberspace Toward a Criminal Law for Cyberspace The traditional model of law enforcement was shaped by certain assumptions about criminal activity. These assumptions derive from characteristics of real-world crime, i.e., that victim and offender must be in physical proximity, that crime is limited in scale, that physical evidence will be found at a crime scene and that crime falls into identifiable patterns. These assumptions gave rise to a hierarchically-organized model which operates on the premise that crime is localized, i.e., occurs within a specific geographical area encompassed by a single set of national laws.

Vulnerability Analysis

The traditional model, in effect, assumes the primacy of nation-states as law enforcers. Neither these assumptions nor the premise that crime is localized apply to cybercrime; cybercrime makes nation-states irrelevant. It evades the assumptions that shaped the traditional model and, in so doing, creates significant challenges for law enforcement.

Exploitation and Demonstrations

It is therefore necessary to devise a new approach for dealing with cybercrime, one that takes into account the distinctive characteristics of technologically-mediated crime. Such an approach is evolving in the cybercrime task forces established pursuant to a mandate contained in the USA PATRIOT Act. Whereas the old model emphasized law enforcement's reacting to completed crime, this approach emphasizes collaboration between potential victims and law enforcement in an effort to prevent cybercime.

Remediation and Defensive Strategies

It also emphasizes lateral, networking arrangements in which law enforcement personnel often function more as consultants than as sole investigators. Clearly, a lateral, collaborative approach is a more advantageous strategy for dealing with cybercrime. The problem is that individuals also need to be involved if this approach is to be effective. Currently, corporations and other entities are more likely to understand the need and have the resources to partner with law enforcement in an effort to implement cybersecurity. This is not generally true of individuals, but it may be possible to use new principles of criminal liability -- modified rules of criminal law and imported, modified civil law rules -- to create incentives for individuals to participate in such an approach.