Cyber and Technology Enabled Crime
Introduction
Cybercrime or technology related crime has been on the rise with the advent of technology and the continued sophistication of life in this digital era. Besides the benefits that have flowed therefrom, technology has also brought along numerous challenges, key among them cybercrime (Sieber & Brunst, 2007). This paper is written with the main aim of examining the concept of cybercrime and the war against the vice, in a bid to ensure that online operators are safe and secure from all ills that technology engenders. In the first section, we discuss the term cybercrime and what it constitutes so as to have a broader picture of this transnational crime that poses a serious challenge to the thriving of technology and online trade. In the next part, we explore the effectiveness of the measures that have been put in place in the fight against the vice by way of legislation. To this end, we shall examine the various pieces of legislation that have been enacted around the globe as well as their effectiveness in addressing the menace. More so, the paper looks into conventions that have been passed by international bodies such as the United Nations, in a bid to combat global cybercrime. In conclusion, the paper assesses the greatest legislative challenges that cybercrime poses around the world.
Computer related crime also known in some circles as cyber crime traces its way to the 1960s with the first articles that dealt with the manipulation of the computer, computer sabotage and the illegal use of computer systems, as well as computer espionage (Weismann, 2011). In the ensuing decades of the 1980s and 1990s, computer crime was no longer restricted to economic crime but also subsumed attacks against a diverse range of interests including copyright infringements. The advent of technology and specifically the internet led to significant changes at phenomenological level as well as the dissemination of illegal material. Some of the illegal materials disseminated in this mode include copyright infringement, xenophobia, child pornography, incitement to racism and system and data interference. The increase and proliferation of Information and Communication Technologies have greatly aided in the commission of these types of cyber crimes. These crimes usually pose threats to confidentiality, integrity as well as the security of key infrastructure. The terms “computer crime” and “cybercrime” have been frequently used by authors and other commentators interchangeably to mean computer related crimes (Brenner, 2011). However, we argue that a cyber crime is more encompassing and subsumes offensive conduct that is not only restricted to computer related crime, but also involves the application of better technologies in the commission of a large range of crimes. Given this position and definition of cyber crime, I argue that the cyber crime may fall under any of the following three categories. These categories include crimes whereby the computer is usually the target of the criminal activity, crimes whereby the internet, as well as new technologies, are incidental aspects of the perpetration of the crime, and where a computer, internet and new technologies are used as tools of commission of a crime. As such, the big question with regard to fighting cyber crime becomes the concern, of the limits within which legislators are able to operate in the fight against these transnational crimes whilst giving respect to fundamental rights of the individuals (Abel, S, & Schafer, 2009). Without a doubt, the war against cyber crime is only possible through internet seizures, access to private communication, the intercepting and searching for communication over the internet often in a clandestine manner and the secret access of information technology systems. In the next part of our discussion, we, therefore, explore the effectiveness of the new cyber crime legislation that has been passed around the world as well as conventions, in the fight against cyber crime on a global scale (Flor, 2012).
Another international legal response to the war against cyber crime was in the year 2005 during the 11th UN Congress on Crime Prevention and Criminal Justice, which was held in Bangkok, Thailand. A workshop was formed during this congress to address computer related crimes upon the realization of the seriousness of cybercrime. This congress culminated in the Bangkok Declaration on Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice, which was endorsed by the UN General Assembly through a resolution in the same year. The declaration simply sought to welcome endeavors to not only enhance, but also supplement the existing framework for the prevention, investigation and prosecution of technology and another computer related crimes (Leibowitz, 2009). To further illustrate the critical nature of cyber crime in recent years, in the year 2010, the subsequent 12th UN Congress that was held in Brazil had a strong spotlight on cybercrime. This event that was held in Salvador, Bahia in Brazil and came to be known as the Salvador Declaration, recommended that the UNODC avails both technical as well as training assistance to member states, upon request, so as to improve their national legislation and build their capacity to fight cybercrime. It further requested that the same global body to constitute an intergovernmental expert caucus which would carry out a comprehensive study on cybercrime and respond to it, not only from, member states, but also the private sector and the international community. All the national and international efforts resulting in declarations and conventions demonstrate the daunting task that countries and the international community face in the fight against cybercrime (Podesta & Goyle, 2005).
Before assessing the effectiveness of these treaties and other forms of legislation that we shall discuss in the breadth of this paper, it is critical to appreciate the challenges presented by cybercrime as a criminal offence. One major challenge of combating is the transnational nature of the crime that makes it imperative for a nation to cooperate with other nations if any war is to be won. This problem becomes manifest owing to issues of jurisdiction that arise at the national and the international level (Kanter, 2006). Usually, the traditional forms of jurisdiction are usually predicated on the concept of boundaries and again, laws are usually based on territorial sovereignty. In contrast, it is the case that cyberspace within which cybercrime occurs is deficient of physical boundaries. The effect of this is that criminals are able to change their locations from a nation to another within a relatively short time, usually seconds in the cyber world, their physical location notwithstanding. The problem is further compounded by the differing capacities of nations more so the developing nations technologically wise to combat cyber crime. It is important that all nations or states use and contribute to mechanisms of international cooperation to enable the fight against cyber crime (Bellia, Berman, & Post, 2007). However, the developing countries are usually vulnerable to cyber crime owing to their technological inferiority and inability to fight cybercrime. With respect to this, at the European level, there is a list of areas that are touted as serious crimes in Article 83 of the Lisbon Treaty. The Treaty of Lisbon provides a number of provisions of a procedural nature and also for the possibility of the establishment of a European Public Prosecutor to aid in the prosecution of such crimes. It further evinces instruments of police cooperation, so as to establish measures relating to the collection, storage and the processing of data and information (Shah, 2005). The European Commission has also availed new measures to fend off attacks against major information systems which were by way of regulation so as to strengthen and modernize the European Network and Information Security Agency (ENISA). As evident, the challenges that are posed by this crime necessitate a process of political choices in such criminal matters which are extensive than is normally the case. With respect to cybercrime in particular, there is the need for involvement of the United Nations and the biggest consumers of the internet such as the United States of America, Latin America, China and Russia (Brennner, 2004).
With regard to the effectiveness of the current legislation that governs this area of law and cybercrime as a criminal offence, we argue that it is not adequate to address the same. This is clearly reflected in the increased cases of cybercrime incidences that indicate that the war against cybercrime is far from being won. For instance, it is paramount that law enforcement departments follow duly the stipulated requirements for the collection of evidence. Nonetheless, the way in which evidence is procured in cases revolving around computer related crimes are still an arduous challenge for the law enforcement. this is because some of the specific information that is related to the computer system and that which may be obtained through a search and seizure can only be done through a warrant and must be approved. This safeguard is also meant to ensure that the prosecutor can offer any challenges by way of evidence to the contentions of the defence in a court of law (Katyal, 2008). In addition, the subsisting legislation in most jurisdictions is absent of consistent investigative standards and protocols which usually end up rendering such evidence obtained in this manner, inadmissible in a court of law. Further, most cybercrime pieces of legislation in a number of countries or states lack relevant specifications on search warrants, and other essential safeguards. Upon the discovery of lawfully acquired evidence that relates to a cybercrime, there is a need for adequate safeguards to ensure that the information as obtained maintains its integrity. It is of much importance that extreme care and attention is given to the said specifications so as to ensure that the items relevant for adduction in court are legally seized and are not barred on grounds of inadmissibility. To this extent, we can state that most of the pieces of legislation governing cyber crime in a number of countries are in need of reform (Flor, 2012). Other examples of treaties or conventions which have been promulgated with time so as to aid in the combat against cyber crime include The Commonwealth of Independent States (CIS) Agreement on Cooperation in Combating Offences related to Computer Information (2001), the Shanghai Cooperation Organization Agreement on Cooperation in the Field of International Information Security (2009), the (Draft) Economic Community of West African States (ECOWAS) Directive on Fighting Cybercrime (2009), the (Draft) African Union Convention on the Establishment of a Legal Framework Conducive to Cybersecurity in Africa (2012), the East African Community Draft Legal Framework for Cyberlaws (2008), the Common Market for Eastern and Southern Africa (COMESA), the Cybersecurity Draft Model Bill (2011), the Southern African Development Community (SADC) Model Law on Computer Crime and Cybercrime (2012) and the League of Arab States Convention on Combating Information Technology Offences (2010) . All these regional and international human instruments subsume within them much cross-fertilization of concepts and policies with varying legal status (Weismann, 2011).
It is instructive to note that some of the international conventions or instruments have no legally binding capacity in that it creates no legal obligations. Rather, the instruments are meant to merely as models or source of inspiration for other states that are developing domestics or national legislative provisions on a similar subject. Examples of such instruments include Commonwealth Model Law, the COMESA Draft Model Bill and the League of Arab States Model Law (Podesta & Goyle, 2005). Given the non-binding nature of these legal instruments, it, therefore, follows that the fight against cybercrime becomes even the more onerous as states that are not bound to oblige by the provisions in the respective instrument in as far as the ear against cybercrime is fought. In addition, legal obligations only arise from conventions only upon ratification of the treaty by a particular nation (Brennner, 2004). It is the case that not all states have ratified the relevant conventions that address the issue of cybercrime and are thus under no obligation to keep to the matters addressed in the treaty. Coming from this position and going by the earlier discussed nature of cybercrimes which are of a transnational nature, the fight against cybercrime may just continue to remain elusive as it has been at times (Bogen & Dampier, 2004). The ultimate solution may lie in embodying the laws and policies in domestic legislation of the respective nations. The down side herein lies in the fact that it is never a guarantee that every nation will hearken to the voice of reason and legislate effectively in their domestic laws so as to fight against this global menace.
It is clear that the subsisting pieces of legislation, as well as international conventions, have done much but not enough in the fight against cyber crime owing to the transnational nature of the crime, the inadequacies of the current laws and policies as well as the toothless nature of some of the conventions. There a number of legislative challenges that confront the drafters that are presented by cyber crime as a criminal offence. The biggest legislative challenge involves the already discussed matter of jurisdiction (Sieber, 2008). Therefore, there is a significant need to seek harmonization of criminal law more so in relation to the area governing cybercrime. Being a global phenomenon and problem, cybercrime makes it imperative for us to consider all countries as important in the fight. Cooperation between developed and countries under transition is significant if the war is to be won since the vice knows no bounds (Brenner, 2011). The challenge of legislation lies in the fact that the country may be unwilling to enact legislation that calls for extradition of its people accused of engaging in cybercrime if the other country does not have similar provisions in place. As such, there is the need for dual criminality in all countries, a key principle which is normally applied in several forms of international cooperation. Indeed, a number of both bilateral and multilateral treaties relating to extraditions as well as national laws encompass this very principle (Leibowitz, 2009). More importantly, this principle of dual criminality will also aid in mutual legal assistance which is a key legal process that enables a country to request for the interviewing or interrogation of witnesses from another country or even the collection of relevant evidence. Another legislative challenge that is posed by cybercrime is the definition of the very offense. It is clear from this paper it is tedious to define a cybercrime due to the evolving nature of technology. This is because some of the immoral activities that may occur are not defined in the relevant penal statute may go unpunished yet they are forms of technology related crimes (Bellia, Berman, & Post, 2007). Nonetheless, it is almost impossible to delineate all forms of crimes so as to label them as cybercrime. Indeed, what several commentators, authors and scholars in this field have not done, and which I will not attempt to do more in this paper, is to define the incalculable.
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