Professional Documents
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INTRODUCTION
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and the desire to taste forbidden fruit. While many criminal acts flow from
mixed motives, it is greed that primarily underlies electronic funds transfer
fraud, and lust that drives the traffic in child pornography. The ability to
make an impact on large systems may, as an act of power, be gratifying in and
of itself. The desire to inflict loss or damage on another may also spring from
revenge, as when a disgruntled employee shuts down an employers computer
system, or ideology, as when one defaces the web page of the United States
Central Intelligence Agency. Much activity that occurs on the electronic frontier entails an element of adventure, the exploration of the unknown. The
very fact that some activities in cyberspace are likely to elicit official condemnation is sufficient to attract the defiant, or the irresistibly curious. Given
the degree of technical competence required to commit many computerrelated crimes, there is one other motivational dimension worth noting here.
This, of course, is the intellectual challenge of mastering complex systems.
None of the above motivations is new. The element of novelty resides in
the unprecedented capacity of technology to facilitate acting on these motivations.
INTERPERSONAL RELATIONS IN CYBERSPACE
Digital technology has, to some extent, impacted on interpersonal relations.
The illusion of anonymity seems to have elicited more candour over the internet than one would expect in face-to-face communications. But whether the
role play that occurs in some chatrooms constitutes something completely
different from good theatre, in which the actors are immersed in their roles,
is open to question. To be sure, some of this role play is extremely aggressive, or otherwise antisocial. But any more so than a performance of Hamlet?
The internet has indeed brought about significant changes in human interaction. Ordinary investors are now able to buy and sell shares online without
dealing through intermediaries such as underwriters, brokers and investment
advisers. While this may enhance the efficiency of securities markets, it also
provides opportunities for criminal exploitation. But the fundamental criminality is still reducible to the basics: misrepresenting the underlying value of
a security at the time of the initial public offering, or market manipulation
during secondary trading of a security, through the dissemination of false
information, or engineering a deceptive pattern of transactions to attract the
attention of the unwitting investor.
One hears anecdotes about children who have been lured from the safety
of their homes by paedophiles after an initial encounter in an internet chatroom, or women who, after an electronically arranged assignation, meet with
foul play at the hands of a predator. But is this really new? Cyberspace serves
the same function as the busstop, the schoolyard or the disco.
There is another sense in which digital criminality may be similar to conventional criminality. At the risk of oversimplification, one may divide conventional criminals into two classes: the competent and the incompetent.
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Sooner or later, most of the latter wind up in prison. The competent ones
avoid detection, or at the very least, prosecution and conviction. So it is with
cybercriminals. The most adept are never noticed, much less identified. By
contrast the inept cybercriminal leaves his footprints all over cyberspace.
NEW CHALLENGES FOR THE STATE
The digital age has begun to pose new challenges for the state. Blasphemous,
seditious, salacious, and otherwise offensive communications have long been
the focus of governmental preoccupation. In an era where many governments
seek to shed functions and devolve powers, the urge to control digital technology remains strong. And yet the ability of governments and legal systems
to adapt to new media for the transmission of offensive content is somewhat
limited. Of course, one could always pull the plug, and severely restrict citizens access to cyberspace. But those governments which seek to maximize
the economic well-being of their citizenry realize that it is futile to try to hold
back the tide of globalization, and that failure to get in on the ground floor
of electronic commerce may retard economic development.
The challenges faced by governments are by no means limited to the regulation of online content. In English-speaking societies at the very least, the
capacity of public police is now acknowledged to be limited. Most victims of
residential burglary are aware that they stand little chance of recovering their
lost possessions; they harbour few illusions that their offender will eventually be brought to justice. The role of the police is often limited to that of
legitimizing insurance claims and providing a few kind words (and perhaps
some crime prevention advice) to the victim. Individuals are, to an extent that
few wish to acknowledge openly, largely on their own as far as crime prevention is concerned. And so those who can afford it acquire sophisticated
alarm systems and live in gated communities. The necessity of self-reliance
in crime control is no less in cyberspace than in ones physical neighbourhood.
PARADOXES OF THE DIGITAL AGE
In addition to the tension between the shrinking state, and the imperative to
direct traffic on the information superhighway, the digital age has given rise
to other paradoxes. Technologies of anonymity and pseudonymity such as
remailers and cryptography can provide a modicum of cover for someone
wishing to mask his or her identity and the content of his or her communication. But not everyone avails themselves of such technologies, and capacities of surveillance exceed all but the most determined users.
Cryptography, regarded by law enforcement as a threat, is one of the
fundamental pillars of electronic commerce. Without this secure technology,
electronic payments, much less the transmittal of ones credit card details,
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that she had posted in chatrooms, not all of which reflected well on her as a
parent. Seeking greater visiting rights with his children, he presented them
unsuccessfully to the mediator in his custody hearing (Glod, 1999).
THE TRANSNATIONAL DIMENSION
One of the greatest challenges posed by the advent of digital criminality is
the enormously enhanced potential for transnational offending. Many, if not
most, cybercrimes can now be committed from the other side of the world
as easily as from the building next door. Not only will this tend to make
identification of the perpetrator somewhat more difficult, it will greatly
impede prosecution of the offender.
Despite the hackneyed contention that the world is shrinking, laws differ.
Some jurisdictions prohibit unauthorized access to a computer system, while
others do not. Some make it a crime to alter or erase data, while others do
not. Nations such as Germany make it a crime to disseminate neo-Nazi propaganda. As distasteful as such material may be, the right to do so is protected
by the Constitution of the United States of America. Some nations criminalize online gambling, while others see it as a wonderful source of export
income.
A degree of common legal ground is required in order to mobilize the law
of a foreign state on ones behalf. Without dual criminality, assistance of the
jurisdiction in which the offender is situated is most unlikely to be forthcoming. But even if there is a degree of consistency, enforcement by officials
in the host nation may by no means follow automatically. All law enforcement agencies have their priorities. If I, comfortably situated in Australia,
were foolish enough to fall victim to an online investment fraud originating
in Albania, the Australian authorities and/or their Albanian counterparts
may have more pressing demands. My case may never receive serious investigative consideration by authorities in either jurisdiction.
IMPLICATING THIRD PARTIES
New opportunities for computer-related crime can create new responsibilities for third parties. Consider, for example, the liability of employers for
misuse of office computers by employees. If I were to send a co-worker sexually offensive email messages, my employer could be liable for failing to
provide a safe working environment. What degree of preventive or reactive
response would be required on my employers part in order to avoid liability?
Companies whose shares are traded on major stock exchanges are generally required by their national laws to ensure that information disclosed
about the company and its activities is full and accurate. With the increasing
use of the World Wide Web as a medium of corporate public relations come
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REFERENCES
Bennahum, D. (1999) Daemon Seed: Old Email Never Dies, Wired 7.05 (May)
10011.
Clarke, R. (1988) Information Technology and Dataveillance. Commun. ACM 31,5
(May 1988) 498512 http://www.anu.edu.au/people/Roger.Clarke/DV/CAC
M88.html (visited 30 December 1999)
Glod, M. (1999) Spouses may delete their marriage, but e-mail lives on as evidence,
Seattle Times 28/4/99. http: //archives.seattletimes.com/cgi-bin/texis.mummy/
web/vortex/display? StoryID = 3733259942 &query = internet+and+privacy
(visited 13 June 1999)
Grabosky, P., R. G. Smith and G. Dempsey (2001) Electronic Theft: Unlawful
Acquisition in Cyberspace. Cambridge: Cambridge University Press.