Internet is a relatively modern phenomenon. As a contemporaneous concept, the rules and legislations that govern and regulate the use of Internet are yet to be developed completely. Before making laws that govern Internet, its nature must be understood completely in order to prevent any lapse in regulating the use of Internet.
The Internet is a powerful medium that transgresses physical/geographical boundaries and connects people irrespective of their physical location. As such its advantages and uses are numerous. It transformed the way in which the world functioned. With all these advantages came unavoidable disadvantages. Internet is like the double-edged sword. It has as many ills as advantages.
Greatest challenge facing law enforcement agencies:
With the advent of Internet came a new category of crimes; cyber crimes. This posed a very unsettling challenge to the authorities. Unlike in the physical world in the virtual world physical boundaries are of no significance. Even more challenging than the issue of jurisdiction is the problem of anonymity.
The Internet presents people with a forum where they have the freedom to not reveal their identity and take on another false identity. This poses a huge problem during investigations. While investigation any cybercrime, cyber-stalking for instance, the investigating authorities will literally be on a wild goose chase as there is no concrete way of determining who the culprit is. The presence of cyber-cafes makes it more difficult as it becomes impossible to determine who sent a message at a particular time.
As such, anonymity is the greatest challenge that investigating authorities are faced with while investigating a cyber-crime, be it cyber-stalking, exploitation or obscenity.
Unlike crimes in the physical world, in cyber-crimes the investigating authorities will have no clue whatsoever about the real identity of the culprit. The advancement of technology has allowed culprits to become better at hiding their identity.
According to Michael Froomkin, despite strict regulation by the Government the presence of strong anonymizing tools enables people to circumvent any regulation put in place by the Government to check occurrence of cyber-crimes. He equates the Internet with the hydra, a mythical beast that was immortal. Every time one head of the hydra was cut off, it would grow two more heads. Similarly, he says, the more the restrictions placed on the Internet, the more tools would be developed to circumvent this restriction. (Froomkin, 1996)
However, it must be stated that authorities have put in place strict regulations that reduce the chances of cyber-crimes being committed under the guard of anonymity. Despite this the number of cyber-crimes have been on the rise.
Challenges posed by over-lapping of jurisdictions:
Anonymity has long been a worrying factor insofar as cyber-crimes are concerned. A collateral to anonymity is the problem of over-lapping jurisdiction. A culprit who is harassing or stalking a victim vide the Internet could be anywhere in the world. Jurisdictional issues are not alien to the cyber world. Once a cyber-crime is committed, if the location of the culprit is outside the jurisdiction of the investigating agencies, the agencies need to seek the co-operation of the agencies where the culprit is located. This is usually cumbersome in the absence of any specific agreement that defines sharing of information between the two jurisdictions. Thus, seeking the co-operation of the investigating agencies in another jurisdiction is a serious challenge posed due to the over-lapping of jurisdictions.
Another issue that overlapping of jurisdiction poses is the presence of specific enactments in the various jurisdictions that criminalize cyber-crimes. Not many jurisdictions have specific enactments for cyber-crimes. This poses a problem, as what amounts to a crime in one jurisdiction may not be a crime in another jurisdiction. This creates an obstacle for the investigating agencies for they will be unable to secure the co-operation of the other jurisdiction if the act does not amount to a crime in that jurisdiction.
Yet another challenge that investigating agencies face is the prevalence of some federal enactments that hinder the process of investigation.
More specifically, some of the old Federal enactments have sections that inadvertently hinder cyber investigations. For instance, the Cable Communications Policy Act (1984) entails a provision whereby subscriber records are not revealed to the investigating authorities without a court record and a prior notice to the subscriber. As many people get their Internet services from cable service providers this provision is a huge hindrance for cyber-crime investigating agencies. The blurring of jurisdiction for cyber-crimes causes a dichotomy as the application of laws. (Pettinari, 2002)
One way of over-coming these challenges posed by the over-lapping of jurisdiction is to have a universal law that provides a basic framework for tackling cyber-crimes. The framework must also provide the terms of co-operation between two jurisdictions for the purpose of investigating a cyber-crime. Just like Trade-Related Aspects of Intellectual Property Rights governs the intellectual property rights at the international level, there must be a similar international agreement for cyberspace that governs cyber-crimes. The Budapest Convention on Cybercrime is certainly a step in the right direction. This Convention has however, failed to make any marked change in the investigation process of cyber-crimes. (Convention on Cyber-crime, 2001)
This indicates the need to have a more compelling Convention in its place. A Convention that binds its signatories to enact national legislations that are conducive to extra-jurisdictional investigations.
Apart from this, States must take the incentive and enact strong cyber legislations within their jurisdiction; legislations that envisage a strong precaution against the occurrence of cyber-crimes. The Legislations must also entail provisions that ease the process of investigation for cyber-crimes. This would go a long way in ensuring a check on the occurrence of cyber-crimes. The advent of technology marks a remarkable progress of the world. Co-extensive statutory measures are required to prevent any ill use of this technology.
Law-officers across jurisdictions:
In a Federation like the US it is important for all the States in the Federation to co-operate with each other in solving cyber-crimes.
The ability for law officers to work with each other is certainly affected by the presence of basic guidelines that regulate the terms and means of co-operation. With such regulations in place, cross-jurisdictional cases will be easier to work on.
For instance, in the US the FBI played an important role in developing the National Cyber Investigative Joint Task Force (NCIJTF). This body acts as a convergence forum for all the domestic governments to share information on cyber-crime investigations within their jurisdiction. The NCIJTF is the perfect example of dealing with global cyber-crime threat for it focuses on building partnerships with industry as well as private sectors in order to recognize a crime even before it committed. It also secures the co-operation of investigative authorities across jurisdictions. (Cyber Security, 2014)
Tackling cyber-crime:
Given the nature of the Internet, no government alone can hope to fight against cyber-crime. The active co-operation of other jurisdictions is a must. It is therefore better to recognize this fact and start forming bodies and enacting legislations that ensure proper co-ordination.
In the contemporaneous society cyber-crime poses a global threat. A holistic approach involving cross-jurisdictional co-operation framework is the only possible solution to tackle this threat.
References
Froomkin Michael. (1996). The Internet as a Source of Regulatory Arbitrage. Retrieved from
http://osaka.law.miami.edu/~froomkin/articles/arbitr.htm#xtocid158342
Pettinari Dave. (2002). Cyber-stalking Investigation and Prevention. Retrieved from http://www.crime-research.org/library/Cyberstalking.htm
Convention on Cyber-crime. (2001). Retrieved from
http://www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/7_conv_budapest_/7_conv_budapest_en.pdf
Cyber Security. (2014). Retrieved from
https://www.fbi.gov/news/stories/2014/october/cyber-security-task-force-takes-whole-government-approach
